PETER M. SYKES vs. BLUE HILL GIRL SCOUT COUNCIL, INC., GEORGE HERMANN, KATHLEEN M. MOGUL, LOUIS MOGUL, RUTH Y. HSIAO, WILLIAM C. HSIAO, WELLS B. GROGAN, HELEN P. GROGAN, THE TOWN OF BREWSTER, MORRIS N. KAZANJIAN, C. BENJAMIN THACHER, SARAH W. THACHER

This matter comes before the Court on petitioner's petition to register approximately 66 acres of land consisting of upland and cranberry bog located in Brewster, Massachusetts along Crosby Neck Road between Long Pond, a great pond, and Sheep Pond (hereinafter referred to as locus) together with certain appurtenances to locus, namely, sanding rights, an easement to use and maintain powerlines and poles, and a 40-foot wide right of way over Crowell's Bog Road (formerly Crosby Neck Road) between locus and the 1964 Town Layout of Crosby Neck Road to the west and south. The principle matter in dispute is the width of the petitioner's easement over Crowell's Bog Road.

Answers were filed by the Blue Hill Girl Scout Council, Inc., an abutter to petitioner also bounding on Crowell's Bog Road, objecting to petitioner's claim of sanding rights over the Girl Scout's land and to the width of petitioner's easement over Crowell's Bog Road; by George Hermann, an owner of land fronting on Long Pond, Kathleen M. and Louis Mogul, owners of lot 3A shown on Exhibit No. 1, Ruth Y. and William C. Hsiao, owners of lot 1 shown on Exhibit No. 3, Wells B. and Helen P. Grogan, owners of lot 5 shown on Exhibit No. 1, all objecting to any easement of access over Crowell's Bog Road appurtenant to locus of a width greater than that of the existing travelled way; by Morris N. Kazajian, Jr., an abutter to Crowell's Bog Road south of Girl Scout property; by the Town of Brewster, an owner of land on the north side of Crowell's Bog Road opposite the Girl Scout property and by C. Benjamin and Sarah H. Thacher, petitioner's abutters to the west. The last four respondents do not object to the width of the easement petitioner claims over Crowell's Bog Road and have entered stipulations to that effect. The town claims Crowell's Bog Road is in its entirety a way to which the public has a right of access. The Attorney General also filed an appearance.

Respondent Girl Scouts, in their brief filed on April 20, 1978, withdrew their objection to petitioner's registration of appurtenant sanding rights and agreed petitioner has the privilege to take sand for the use of the bogs shown on exhibit no. 1 from the land of Blue Hill Girl Scout Council, Inc. where least damage will be done.

Hence, the sanding privilege is no longer in issue. Also, respondent Girl Scouts, agree that petitioner has the right to use the existing overhead utility line for electric and telephone wires which runs along Crowell's Bog Road and is shown on exhibit no. 4. Respondents Girl Scouts, Hermann, Mogul, Hsiao and Grogan also agree that petitioner has an appurtenant easement of access on foot and by vehicle to locus over the travelled portion of Crowell's Bog Road between the 1964 layout and locus. Hence, the issues remaining for the Court to decide are 1) the width of petitioner's right of way over Crowell's Bog Road from the 1964 town layout to petitioner's locus; 2) whether petitioner has the right to grade, pave, or otherwise improve Crowell's Bog Road; and 3) whether the public has any rights in Crowell's Bog Road from the 1964 town layout east through locus.

A view was taken during the summer before trial, on July 19, 1977 and hearings were held on January 3, 1978, January 4, 1978 and March 29, 1978. Eleven witnesses testified and twenty-one exhibits, which are incorporated herein for the purpose of any appeal, were introduced. Briefs were received on April 20, 1978 and a reply brief on April 25, 1978.

On April 11, 1978 respondent Girl Scouts moved to have the Court take judicial notice of an answer filed by Peter M. Sykes in Land Court Registration Case No. 31810 brought by Morris N. Kazanjian, Jr. and Horace L. Johnson. The land involved in the later case is north and east of locus but also involved an easement over Crosby Neck Road. A hearing on this motion was held on April 27, 1978. The petitioner argued Sykes' answer in the Kazanjian registration case was of no relevance to the present proceeding. As the Court is entitled to take judicial notice of matters in its own files and records, K. Hughes, Evidence, 19 M.P.S. §84, p. 78 (1961), the respondents' motion is granted; however, this evidence is of little weight in the Court's opinion.

1. The Width of Petitioner's Right of Way Over Crosby Neck Road.

Petitioner's title to locus stems from two chains of title herein referred to as the Storrow and Makepeace chains. Both of these cover separate sections of locus and both refer to the right of way over Crosby Neck Road (now Crowell's Bog Road). The Storrow parcel, colored green on the title examiner's working plan, exhibit no. 5, sheet 2, consists of about t 38.5 acres and is northerly of the Makepeace property, which is colored orange, yellow and purple on the working plan.

The abutters to Crowell's Bog Road between locus and the town layout, the area which is of concern in this litigation, are the Town of Brewster on the north side and Girl scouts, Inc. and Morris N. Kazanjian on the south side of the road. Morris N. Kazanjian has entered a written stipulation with the petitioner that Crowell's Bog Road is 40 feet wide as it crosses Kazanjian's land as shown on petitioner's file plan (Exhibit No. 1); the Town of Brewster has entered a stipulation that Crowell's Bog Road is as shown on the file plan; thus, the width is in contention only where Crowell's Bog Road abuts the Girl Scout's property. The grant of a right of way in the deeds in both title chains refers to specific roads. The Storrow-Sykes deed (Exhibit No. 11) states:

"Said premises are conveyed together with a right of way out to the Brewster-Harwich Road over Crosby's Neck Road..."

The Makepeace-Sykes deed (Exhibit No. 14) grants

"a right of way from said granted premises over the old Pasture Road..."

Old Pasture Road is another name for Crosby Neck Road. (Tr. 2-55-56). The reference in both deeds to an existing road, Crosby Neck Road, takes the easement out of the undefined category.

That Crosby Neck Road was an existing road can readily be seen from various plans on record. A plan entitled "Plan of Land in Brewster, Mass., as surveyed For Homestead Trust, Arthur L. Sparrow, Surveyor, Nov. 1916. So. Orleans, Mass. Scale 1"-100 ft." shown as Sheet 2 of the petitioner's abstract (Exhibit No. 5) shows the road as running south from the locus to the portion of the road accepted by the Town in 1964 and being bordered by the Girl Scout land to the south and by the land now of the Town of Brewster to the north. The width of the road can be ascertained, although not too accurately, by scaling. Of more significance is a plan, a copy of which is found on page 100 of the abstract (Exhibit No. 5), entitled "Plan of Land in Brewster, Mass. belonging to John H. Paine. From the office of A. L. Sparrow, Surveyor. August 1918. Scale 1"-100 ft." The parcel shown is that now owned by the Town of Brewster bordering on its southeast and south, an unidentified road on the plan, being Crosby Neck Road in fact, separating this parcel from land now of the Girl Scouts on the southeast and east of this road. The important feature of this plan is the statement found thereon "This road surveyed April - November 1916". Thus, this road not only was in existence but was actually surveyed as early as 1916. The way as scaled from the plan is shown to be from 8 to 10 feet in width.

The petitioner's original file plan, 38182A1 shows Crosby Neck Road as being 40 feet in width from the portion of this road accepted by the town in 1964 northeast to locus. The travelled portion of the way is shown to be 10 feet to 12 feet in width. From the center of the travelled way 20 feet were measured off against the Girl Scouts' land to the east and 20 feet against the land of the Town of Brewster to the west to form the claimed 40' way, into the petitioner's locus. Petitioner's property is shown bordered on the west by a way called Sheep Pond Road, running north from Crosby Neck Road which runs easterly through the locus. There is a curious notation on this plan with arrows pointing from it to Sheep Pond Way "West [SL?] of 40' way Follows W [SL?] of Old Roadway 8' wide." Thus the old roadway was admittedly 8 feet in width in this area. It should be pointed out that this portion of the road was shown on the Sparrow Survey to be the same width as Crosby Neck Road. Unlike in the Girl Scout area, petitioner laid out Sheep Pond Way by taking 36 feet from his own land and 4 feet from land claimed as being to the west of the middle of the way.

The petitioner argues

"It is an established principle of law that where a right of way is granted, but the dimensions of that way are left undefined, the grant is of such a way as is necessary and convenient for the purposes for which it was granted."

and cites four cases in support of this proposition. Petitioner's Trial Brief, p. 7. The Court has determined that the reference in both deeds upon which petitioner relies to an existing road, Crosby Neck Road, takes the easement out of the undefined category and modifies the operation of this principle. An examination of the cases petitioner cites indicates their inapplicability to the present circumstances.

The first case petitioner cites, Van Buskirk v. Diamond, 316 Mass. 453 (1944), involved a right of way granted by deed but entirely unlocated therein or on the ground. The master found that "no definite path or road was apparent, existed or was customarily used" over the area in question and that the "limits and location of the right of way across" the area in question "were never defined and cannot be determined from the deed...." Van Buskirk at 458. In such circumstances clearly the easement may be said to be undefined. If it becomes necessary to definitely locate such an undefined easement, the Court must resort to the intention of the parties to do so. It is presumed the parties intended such a way as should be necessary and convenient for the purposes for which it was granted. When the parties have not indicated, either by deed language or subsequent use, what is "necessary and convenient" the Court itself must do so. The Van Buskirk case is a prime example of this process but its facts differ materially from the present case where the parties, by reference to a way in existence, have already determined the limits of the easement.

The deed in Lipsky v. Heller, 199 Mass. 310 (1908), another case the petitioner cites, referred to the general area over which the right of way was granted ("in and over the...open court on the northerly and easterly sides"). The deed did not specify the width on the northerly and easterly sides, and the master found no definite assignment had been established by user. It was incumbent upon the Court to establish the specific width within the general area fixed by the deed. Atkins v. Bordman, 2 Met. 457 (1841), another case on which the petitioner relies, is similar. Rajewski v. MacBean, 273 Mass. 1 (1930) is also similar except that the general area in which the granted easement was to be located was established more by reference to the physical layout of the buildings and the parties' subsequent use than by deed language. Thus, in the last three cases where only the general location of the granted rights of way had been established, the ways may be fairly said to have been undefined as to width, and the Court had to establish the specific width within the general area. In contrast, in the present case, the reference to an existing way, Crosby Neck Road, effectuates a definition of the width and location of the right of way. Thus the Court concludes the petitioner's right of way over Crosby Neck Road (now Crowell's Bog Road) is limited to the existing travelled way. [Note 1]

Petitioner also places great reliance on Hodgkins v. Bianchini, 323 Mass. 169 (1948) a case involving a grant of a right of way over a parcel about thirty-three feet in width. In that case, the use of the right of way called the "Lane" had changed from a use associated with farming and pasturage to the transportation of fifteen to twenty loads of gravel per day carried in dual wheel trucks. Use by the truck had widened the worn portion of the "Lane" by approximately two feet. The Court stated that the granted easement was not limited to the width of vehicles in common use at the time of the original grant, 1820. Petitioner seems to be arguing that this case establishes that the width of a granted easement may be increased to allow for the reasonable development of the dominant estate. While the Bianchini case indicates that the travelled portion of the thirty-three foot area was increased by subsequent owner's use, there is no indication the width of the property over which the right to pass had been granted, the thirty-three foot wide strip, was increased. Thus, the Bianchini case is very like Lipsky v. Heller, 199 Mass. 310 , Atkins v. Bordman, 2 Met. 457 , and Rajewski v. MacBean, discussed previously, in which the Court specifically located and restricted a right of way to a specific area within a general area established by deed or use. This is done in accordance with the general principle that a grant of a right of way "over" a certain area does not necessarily entitle the grantee to use of the whole area. The grantee is entitled to a convenient way within those limits. Johnson v. Kinnicutt, 2 Cush. 153 , 157 (1848); 3 Tiffany, The Law of Real Property, §803, p. 328 (3rd ed. 1939); "Width of Way Created by Express Grant, Reservation, or Exception not Specifying Width," 28 A.L.R. 2d 253. In contrast, in the present case, petitioner is seeking to increase, by approximately thirty feet, the width of a way defined in substance in the petitioner's deeds. Thus, the Bianchini case does not affect the Court's conclusion that petitioner's right of way over Crosby Neck Road is limited to the existing travelled way.

However, even if the Court were to conclude that the deeds are ambiguous, i.e., that the deeds' reference to an existing way did not operate to establish the width of the way, and were to determines from extrinsic evidence the intention of the parties in light of the surrounding circumstances, the Court would reach the same conclusion as to the width of the right of way conveyed.

Petitioner argues that Storrow intended to grant a 40-foot right of way over Crosby Neck Road to petitioner. As Storrow was also the owner in 1953 of the property now owned by the Girl Scouts, Storrow could have, had he intended, granted a 40-foot right of way in the area now in question. (Exhibit No. 5, Sheet 84). Petitioner's argument is as follows: As the dimensions of the way are undefined in the Storrow-Sykes deed, petitioner is entitled to a way which is of dimensions reasonably sufficient for the accomplishment of the object of the grant. The Storrow deed contains a restriction that "no buildings other than not more than nine (9) dwelling houses, with proper and necessary accessory buildings therefor, shall be built, erected or maintained on the premises for a period of ten (10) years from the date of this deed." In light of this restriction it was specifically contemplated by the parties that the petitioner might subdivide the conveyed parcel. However, as the subdivision regulations of the Brewster Planning Board in effect at date of the Storrow-Sykes deed required, as a condition of planning board approval, that street right of way widths be a minimum of 40 feet, (Exhibit No. 13, §2B(1)), a forty-foot way was necessary to the accomplishment of an object of the grant - the provision of access to a subdivision. Thus, the petitioner argues, the parties to the Storrow deed must have intended the width of the right of way to be 40 feet.

The principle difference between the petitioner's argument and the cases the petitioner cites in support thereof is that the petitioner is arguing in terms of legal necessity while the cases deal with physical convenience and necessity, i.e. with the physical space needed to effectuate the purposes for which the easement is granted. The petitioner cites no cases in support of its argument based on strictly legal necessity. The Court's own research has not located any case precisely on point though in Cushman Virginia Corporation v. Barnes, 204 Va. 245, 129 S.E. 2d 633, 639 (1963), the argument that where a deed is silent as to width of a granted easement it should be presumed the parties intended a thirty foot way, the width of all public roads at the time of the grant, was rejected in the absence of any evidence the parties did actually intend a 30 foot way. Where a way, whose limits are undefined in the grant, is defined and located by the Court so as to be physically suitable for the purposes expressed in the grant, no violence is done to the intention of the parties as it logically follows the parties had in mind the physical accomplishment of the purposes contemplated by the deed. It does not necessarily follow that the parties had in mind or even knew of all legal requirements.

By merely including the reservation limiting development to nine dwelling houses the grantor, Storrow, did not represent that the land conveyed was legally adequate for the building of nine houses, i.e., of sufficient acreage to meet minimum acreage or other zoning requirements. Cf., Kannavos v. Annino, 356 Mass. 42 , 46-47 (1969). Similarly, the restriction coupled with the grant of the easement by itself should not effectuate a conveyance of an easement legally sufficient, as opposed to physically sufficient, to accommodate the subdivision. It is the grantee's responsibility to ascertain the legal requirements of his proposed project and to secure what is necessary by clear language from the grantor. The grantor should not be put to this burden or held to the risk of having conveyed whatever was both within his power to convey and legally necessary to accomplish the development of the land by the grantee.

In any event the Court is not convinced that the 1953 Subdivision Regulations of the Brewster Planning Board did in fact require a forty-foot width in the area of Crosby Neck Road now under litigation - between the 1964 town layout and locus - as a condition of planning board approval. In that event, the whole premise of petitioner's argument fails.

Section 2 of these regulations provide:

"B. Suitability of Street System

No plat of a subdivision shall be approved unless the ways and streets shown on the plat comply with the following requirements:

......

Width

(1) The minimum width of street rights of way shall be forty feet."

Under §1G(4) and (8) the ways and streets required to be shown on the plat are both ways within the plat and adjacent ways. (Exhibit No. 13). It is clear that Crosby Neck Road in the area now under litigation (west of locus) is not a way within any possible subdivision of locus. Nor is it an adjacent way if adjacent is interpreted as meaning "abutting" or "having a common border with." The fact that petitioner received planning board approval in 1955 of a subdivision of the land petitioner obtained from Storrow without showing Crosby Neck Road in the area now under litigation (see exhibit no. 12) indicates Crosby Neck Road in that area was not within §2B(1) of the 1953 Brewster Subdivision Regulations.

Thus the Court rejects the petitioner's argument, based on legal necessity, that the parties to the Storrow-Sykes deed intended a forty foot right of way over Crosby Neck Road.

As far as petitioner's argument is based on physical necessity to accomplish an objective of the grant, the provision of access to a subdivision, the Court concludes a way limited to the existing travelled way was intended and was conveyed. While the Storrow deed may contemplate a subdivision, in light of the nature of the area, the proximity of ponds and beaches, its quiet, wooded character, the small number of homes allowed under the restriction in relationship to the acreage, a development consisting of summer or vacation cottages is suggested. Crosby Neck Road in its present condition and width is suited to such a tranquil wooded subdivision.

Petitioner's argument as to the intention of the parties to the Makepeace-Sykes deed (exhibit no. 14) is even more attenuated. Petitioner points to the following circumstances as relevant in construing the parties' intent. By 1967, the date of the Makepeace deed, petitioner had recorded two plans showing a subdivision of the "Storrow" property. The "Storrow" property is adjacent to the "Makepeace" property. The "Makepeace" property consists of "valuable lakefront property." From these attending circumstances petitioner argues "it is reasonable to suppose the parties to the Makepeace deed understood that the Makepeace property might similarly be subdivided" and thus a forty foot way, necessary to the effectuation of a subdivision, must therefore have been contemplated. The Court disagrees for the same reasons discussed in connection with the Storrow-Sykes deed.

It is axiomatic that a grantor can only convey what he owns. As far as the right of way over Crosby Neck Road between locus and the town layout is concerned, Makepeace, unlike Storrow, did not have the power to convey a forty foot right of way as he did not own the adjoining land. There are no circumstances surrounding the Makepeace-Sykes transaction to indicate a right of way in excess of the existing limits of Crosby Neck Road was intended to be conveyed and the Court so finds.

Thus, the Court concludes the petitioner is entitled to register as appurtenant to locus a right of way over Crosby Neck Road (now Crowell's Bog Road) and the turnouts limited to the existing travelled way, basically a ten to twelve foot wide way.

Exhibit No. 4, a plan by Schofield Brothers, Inc. dated May 6, 1977, defines the extremities of the existing use of Crosby Neck Road from locus southwesterly to the 1964 town layout. A solid line defines the extreme southerly sideline of the existing use and turnouts. A dotted line shows the northerly sideline of the existing use. (Tr. 51, 78). The width between these lines varies from 22 feet to fifty four, the wider widths generally being at the turnouts and at the junction of Crosby Neck Road and Sheep Pond Road. The width of the travelled portion of the way varies from ten feet to about sixteen feet at the intersection of Crosby Neck Road and Sheep Pond Road. (Tr. 90).

The Girl Scouts have also objected to the indication on petitioner's registration file plan, exhibit no. 1, of an easement 40 feet wide across the corner of the Girl Scouts land between Crosby Neck Road and lot 16. This right of way is granted in the Makepeace-Sykes deed (Exhibit No. 14) as "a right of way for horse, horses, and wagons, and other vehicles across the adjacent premises of said Butler and Maker in a northwesterly direction, connecting with an old road leading to Jolly's." (Tr. 2-54). The Court determines, for the same reasons discussed in connection with determining the width of petitioner's easement over Crosby Neck Road, that the width of this right of way is limited to the actual travelled width which is shown on sheet 2 of exhibit 4. (Tr. 63).

2. Petitioner's Right to Grade, Pave, Improve, etc. Crowell's Bog Road

Respondents Girl Scouts, Hermann, Mogul, Hsiao and Grogan object to any right claimed by petitioner to alter the existing way such as widening, relocating, paving, installing curbing, sidewalks, street lights or making any other improvements. In turn, petitioner argues it is entitled to register as appurtenant to locus a right of way over Crosby Neck Road "to be used for all purposes for which ways are commonly used in the Town of Brewster." There is a certain abstract quality in the relative positions of the parties. Petitioner has not specifically claimed a right to or indicated an intention to install curbing, sidewalks, street lights or improvements to which the respondents object, unless such claim is embraced within the somewhat imprecise phrase "all purposes for which ways are commonly used." Thus these issues are somewhat hypothetical in character and perhaps not fully ripe for adjudication. In this registration case the Court believes it is sufficient to locate and determine the width of the petitioner's right of way; the Court cannot definitely settle every right which may pertain as an incident to petitioner's easement. Nevertheless, the Court will address some of these contentions in a general way.

First, the petitioner is not entitled to register his right of way "to be used for all purposes for which ways are commonly used in the Town of Brewster" as the rights which pertain under such an "all purposes" easement are broader than those incidental to a general right of way. Compare Beals v. Brookline, 245 Mass. 20 , 33 (1923) suggesting that a right of way granted "for all purposes for which streets or ways are ordinarily used" embraces the right to lay drains and sewers therein with Ampagoomian v. Atamian, 323 Mass. 319 (1948) holding that a grant of a right of way by itself does not include the right to lay pipes therein. See also Ward v. McGlory, 358 Mass. 322 , 325 (1970); but see G. L. c. 187, §5. Petitioner's right of way over Crowell's Bog Road is an easement of access on foot and by vehicles and is limited thereto except insofar as G. L. c. 187, §5 may affect it.

However, an easement of a right of way consists both in a right to use the surface for passing and repassing and the incidental right of properly fitting the surface for the purposes for which the right of way was granted. Atkins v. Bordman, 2 Met. 457 , 467 (1841). Thus, the petitioner, the easement holder, has a right to level, gravel, plough or pave the way according to the nature of the way granted. Van Buskirk v. Diamond, 316 Mass. 453 , 462 (1944); Guillet v. Livernois, 297 Mass. 337 (1937). While respondents agree petitioner has the right to repair the existing travelled way, respondents argue the installation of a paved street meeting the design standards of the Town of Brewster is not within the scope of petitioner's right to repair. As there is no evidence before the Court on the design standards of the Town of Brewster, the Court cannot definitively rule on this contention. More specifically respondents argue Crowell's Bog Road should remain a dirt road, pointing to the dispoilation of this rustic area which would be wrought by a paved road's ability to accommodate increased traffic. While this may be true and regrettable, the Court is of the opinion the right to pave Crowell's Bog Road is within the petitioner's incidental rights. Van Buskirk v. Diamond, supra.

Respondents also wish the Court to determine the intensity of user to which Crowell's Bog Road may be put by petitioner, that is, respondents want the Court to now decide into how many house lots locus may be subdivided before there will be a surcharge upon the easement. "A general right of way appurtenant to a tract of land, not limited in its scope by the terms of the grant, appertains to every portion of the tract, and upon a division of the land a right of way will exist in the owner of each of the lots into which it may be divided." Dunham v. Dodge, 235 Mass. 367 , 372 (1920). However, at some point a surcharge of the easement may develop. The Court does not believe a subdivision into 16 house lots as shown on exhibit no. 1 would constitute a surcharge, but the Court cannot now ascertain the precise limitation beyond that point. The Court cannot decide such an abstract question.

3. Public Right To Use Crosby Neck Road.

Crosby Neck Road now Crowell's Bog Road, runs from Route 124 northeasterly through locus to Route 137. The portion now in dispute commences at the terminus of a 1964 town layout and proceeds easterly across land belonging to Morris N. Kazanjian, Jr., the Town of Brewster and the Girl Scouts continuing northeasterly through locus.

Before widespread automobile usage, the way was a three rut road, ie., two ruts for wheels and the middle for the horse. Now the middle rut has disappeared. The width of the road has not changed materially in this century. A 1916 plan, exhibit no. 5, sheet 27, shows a small portion of Crosby Neck Road, the width of which scales off to approximately 10 feet wide. Another 1916 plan, exhibit no. 5, sheet 2, shows Crosby Neck Road as it crosses what is now the property Mr. Kazanjian and the Girl Scouts to be about 10 to 12 feet wide by scale. A 1918 plan, exhibit no. 5, sheet 100 shows Crosby Neck Road from Black Pond to locus of a width, by scaling, again approximately 10 feet wide. A 1953 plan, exhibit no. 5, sheet 96 shows Crosby Neck Road to be approximately 10 or 12 feet wide in the area east of Black Pond to the entrance of the Girl Scouts' land. Witnesses testifying to the width of Crosby Neck Road gave estimates varying from ten feet to sixteen feet.

One of the town's witnesses, Mr. Eldridge, familiar with Crosby Neck Road for the past 50 years, testified the condition and width of the way in 1945 is similar to its condition today and this evidence was substantiated by other witnesses.

During the latter half of the nineteenth century, Crosby Neck Road was known as Nook Road, and was used by clammers living in Harwich Center to travel to the bay side of Cape Cod.

The way has been used in more recent times by the public as a short cut between routes 137 and 124 and as an access to the land and ponds in the area of the road. Mr. Gage, a fifty-four year old deputy sheriff of Barnstable County and former special police officer of the Town of Brewster, testified he has used Crosby Neck Road since the 1930's. As a boy, he and others used it to go swimming at the ponds and hunting at a duck camp near the road. In the 1950's, while he was a special police officer, he responded to complaints of boisterous parties at the ponds in the area of the road, though he never ordered any member of the public not to use the road.

Mr. Eldridge, a sixty-four year old state forest fire marshall, has used the road for fifty years both in a recreational capacity to fish at the ponds and in connection with his official duties. He patrols the road two times a month. He has commonly observed the use of the way by members of the general public. He has seen campers, hunters, fishermen, recreational users of the ponds using the way and recently abandoned campsites of those who have passed through.

After a 1944 hurricane Mr. Eldridge directed a crew of thirty men, employed by the state to clear ancient ways, to remove fallen trees and debris blocking the road.

There was no evidence that passage over Crosby Neck Road has ever been denied any member of the public.

The Town has treated Crosby Neck Road as a public way. The Town plows the road in winter from route 124 up to the entrance to the Girl Scouts' Camp. Recently the Brewster Planning Board changed the way's name from Crosby Neck Road to Crowell's Bog Road. Signs along routes 124 and 137 give direction to Crowell's Bog Road.

The Court concludes the public has acquired an easement by prescription in Crowell's Bog Road. This easement is commensurate with the existing travelled width, approximately ten to twelve feet. Thus, petitioner's decree of registration must be made subject to the right of the public to use Crowell's Bog Road.

Petitioner has submitted 36 requests for findings of fact. Numbers 1, 2, 3, 4, 6, 7, 9, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 are granted. Numbers 5, 8, 10 and 13 are denied. As for number 11, the Court finds petitioner widened Crosby Neck Road to some extent by constructing turnabouts and that such construction proceeded with the knowledge of and without objection from Storrow. As for number 12, the Court finds Crosby Neck Road is a dirt road with an approximate width varying from 10 to 16 feet, exclusive of turnouts; 22 to 54 feet, inclusive of turnouts. With respect to number 14, the Court finds that some vehicles travelling in opposite directions can pass one another without driving into a turnabout, but most cannot in many areas of the road. As for numbers 35 and 36, the Court finds there is no evidence to such effect.

Petitioner has submitted 25 requests for conclusions of law. Numbers 2, 3, 11, 12, 13, 15, 16, 21 are granted. Numbers 1, 4, 5, 6, 7, 8, 9, 10, 14 are denied. As respects numbers 17 through 25, the Court concludes the public has acquired an easement by prescription in Crowell's Bog Road.

Respondents Girl Scouts, Hermann, Mogul, Hsaio, Grogan have submitted 10 requests for findings of fact. Number 2 is granted. Number 1 is denied because the short dashed lines on exhibit no. 1, the 38182A1 registration plan, may not precisely delineate the existing travelled way. (Tr. 43) However, the Court finds that the short dashed lines on exhibit no. 1 delineate the existing travelled way on Crosby Neck Road between locus and the 1964 Town Layout within an accuracy of three to four feet. (Tr. 46). Number 3 is denied. By respondents' admission, petitioner has the right to use the existing overhead utility line for electric and telephone wires. Some of the poles supporting these wires are located outside the existing travelled way. (Exhibit No. 4) Number 4 is granted except as to respondents' reference to Crosby Neck Road as a private way. Numbers 5, 6, 7, are denied. As for numbers 8 and 9, the Court finds petitioner has an easement of access on foot and in vehicles from Crosby Neck Road to lot 16 over the land of Blue Hill Girl Scout Council, Inc. in the location of the existing dirt road. Number 10 is denied.

The same respondents have submitted five requests for rulings of law. Number 3 is granted. Numbers 1, 2 and 4 are exceedingly abstract propositions which are not invariably true but rather may be affected by the particular facts of a case and are therefore denied. Number 5 is true in the context of factual circumstances presented by a case such as Bullukian v. Franklin, 248 Mass. 151 (1924) but does not control the disposition of the present case and is therefore denied.

The Town of Brewster has submitted 17 requests for rulings of law. Numbers 1, 2, 3, 4, 5, 13, 14, 16, 17 are denied; numbers 6, 7, 8, 9, 10, 11, 12, 15 are granted.

The petitioner is entitled to a decree of registration in conformity with the findings of this decision, subject only to such other matters not in issue herein as are disclosed by the abstract of title.

Decree accordingly.