BENJAMIN H. FRITZ and HELEN G. FRITZ vs. TOWN OF ADAMS, MICHAEL R. SHAY and HELEN T. SHAY.

Benjamin H. Fritz and Helen G. Fritz, seasonal residents of Adams in the County of Berkshire, seek by this complaint to compel the Town of Adams [Note 1] to repair the so-called "High Bridge" across the Tophet Brook, which bridge formerly afforded access to their summer home. Also named as defendants are Michael R. Shay and Helen T. Shay across whose land the plaintiffs claim alternatively to have a right of way by necessity or prescription and who, the plaintiffs contend, should repair the bridge if the town does not have the duty to do so. Mr. and Mrs. Shay appeared pro se.

A trial was held in the Courthouse in Adams on June 19 and 20, 1978, at which a stenographer was appointed to record the testimony.

All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the commencement of the trial, the Court took a view of the High Bridge and of East Mountain Road in the presence of counsel, Mr. Shay and town officials. For reasons of safety, the view was confined to the southerly side of the bridge and East Mountain Road as it rises to meet the bridge at an elevation of 1,750 feet.

Upon the evidence I find and rule as follows:

1. The home of the plaintiffs is approached from the business district of Adams by traveling over several intervening streets until Walling Road is reached, then traversing Walling Road along which there are several homes to East Mountain Road, and then turning on East Mountain Road and climbing to the High Bridge. The latter road is sparsely settled; there is a residence at the junction of Walling and East Mountain Roads, a working farm of the Alibozek family about 3,111 feet from Walling Road and the home of the defendant Shays in proximity to the bridge. In the past it was possible to cross the High Bridge by car from East Mountain Road and to follow the road on the opposite or northerly side of the bridge to the plaintiffs' property. While third parties own land on the plaintiffs' side of the bridge, there are no additional homes which can be reached only via this route. In years past there were other homes and business operations (sawmills) so served.

2. The plaintiffs purchased their property in 1959. They were the grantees named in a deed from Frederick L. Preston dated March 6, 1959 and recorded with Berkshire Northern District Registry of Deeds, Book 541, Page 35, covering seven parcels of land in Adams. Commencing in the fall of that year Mr. Fritz frequently wrote the Highway Department with repeated requests that East Mountain Road and the bridge be repaired (Exhibit No. 25). The town continuously attempted to fulfill his requests.

3. The High Bridge now is closed. A fence across the bridge bears a warning sign and bars access. Accordingly, to reach the plaintiffs' home it is necessary to scramble down the sides of a ravine on foot, traverse Tophet Brook and clamber up the opposite side. The plaintiffs or members of their family recently have done this both with livestock and luggage.

4. East Mountain Road is a gravel road of narrow width. There are town records of its repair by the town at least since 1921, but the evidence shows that it was kept in condition by the town from a much earlier period. The surface has been maintained, spring washouts have been filled in and muddy conditions have been alleviated with gravel and cinders. A recent suit was brought in the Superior Court to compel the Selectmen to recognize East Mountain Road as a town way and to maintain it in passable condition, and the master's report, confirmed by Judge Tamburello on December 23, 1975, found East Mountain Road to be a public way. This was in harmony with an earlier opinion of town counsel who had so advised the Selectmen in 1973 when the installation of poles for electricity and telephone service was under consideration. The town objected to the admission of the master's report, and it was admitted de bene.

5. In 1937 there was an article in the town warrant to discontinue the town way leading east from Walling Road to Little Egypt as the section of the town under consideration is known, and the article was indefinitely postponed.

6. It is the practice in Adams for the town to maintain some private ways and to remove snow therefrom.

7. In 1830 the town voted to "discontinue a town road ... under contract By James Burt from near Humphrey Anthonys Saw Mill to where it intersects with the path east of Benjamin Raymonds and in Lieu thereof to direct the Selectmen or appoint a Committee to Locate a road on the North Side of the Brook from and to this Same places or nearly so." A committee of three was appointed to locate the road north of the brook which I find to be East Mountain Road running northeasterly from the High Bridge. In 1833 there was an article in the warrant

To see if the Town will discontinue the Town Road from the High Bridge so-called above Humphrey Anthony's savmill to Savoy line

which was enacted. This appears to be the discontinued road which is shown on the maps of the Town of Adams introduced into evidence and running from a fork easterly of the bridge near the plaintiffs' home easterly and then northerly to the Savoy Center Road. Long after the vote to discontinue had been adopted, this road and another branch leading to East Hoosac Street in Adams were used. It appears to be an anomaly that a road accepted only in 1830 would be discontinued in 1833, and the town has attempted to show that this road is still in existence and may be used today to afford access to the Fritz premises. I find, however, that it was discontinued in 1833, and the tOwn has not shown that there- after it again became a public way.

5. There is no evidence as to who originally constructed the High Bridge, but the town kept the bridge in repair for many years. The bridge was ten feet wide, had a span of twenty-eight feet and was erected on thirty foot stone abutments which have now crumbled. Over the years the planking and railings were repaired several times by the town, and at least once the abutments were repaired as well. This covered the period from 1925 through 1962. As early as 1943 the town meeting, while declining at that time to authorize repairs, did approve the expenditure of funds for an engineer's report. In 1966, 1974 and 1977 the Department of Public Works of the Commonwealth inspected the bridge; in the earliest of these years the bridge was found in poor condition, and the report recommended that the bridge be re-aligned upstream. In the later years the state highway engineer suggested that rather than spanning the gap with I-beams, a prefabricated panel bridge known as a Bailey bridge be installed. During these years it was frequently stated in the reports that the structure was a town bridge, and some feasible method of restoring it was sought. All the evidence requires the conclusion that High Bridge is a part of East Mountain Road, that the road presently terminates at the northerly end of the bridge, and that the town has an obligation in some reasonable way to repair the bridge pursuant to the strictures of G. L. c. 84, §l.

I have reached my conclusion that East Mountain Road is a public way without relying upon the Superior Court decision. The town objected to the admission of the master's report not on the ground of lack of collateral estoppel or as it is more usually denominated today, of issue preclusion, but rather on the ground that the prior suit was against the Selectmen, not the town. However, the master's report recites that the plaintiffs were proceeding not only against the Selectmen but the town and its superintendent of streets as well. The town's objection doubtless stems from the distinction between public officers and agents of the town which the Supreme Judicial Court addressed at length in its landmark decision of Whitney v. Worcester, Mass. (1977) [Note 2], relating to governmental immunity. This Court is more concerned with the fact that the plaintiffs in the two proceedings are not the same.

It was stated in Albernaz v. Fall River, 346 Mass. 336 (1963), at 339-40, that for reasons of fairness "rarely, if ever, has a court allowed a stranger to the first action to use a judgment offensively, as distinguished from defensively, against a party who did not initiate the prior litigation." The federal courts have gone farther, however, in finding issue preclusion without mutuality of parties. Two relatively recent Second Circuit decisions have reached the issue before this Court; namely, whether the prior judgment of a sister court has the effect of collateral estoppel when the parties plaintiff differ. The court in both Zdanok v. Glidden Co., 327 F.2d 944 (2d Cir. 1964), and Berner v. British Commonwealth Pacific Airlines: Ltd., 346 F. 2d 532 (2d Cir. 1965), noted that application of the doctrine of collateral estoppel, in the absence of mutuality of parties, is discretionary with the court and the prior judgment will be followed only when the court is satisfied that

(1) assertion of the plea of estoppel in successive actions would create anomalous results, or (2) the party had ... had a full and fair opportunity to litigate the issue effectively.

Id. at 540-41; see Zdanok v. Glidden Co., supra at 952-53. The factors to focus upon in determining whether a party has had his day in court

"include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and forseeability of future litigation."

Skrzat v. Ford Motor Co., 389 F. Supp. 753, 757-58 (D.R.I. 1975), quoting Schwartz v. Public Administrator of County of Bronx, 24 N.Y. 2d 65, 72 (1969).

In light of the disparity of parties, this Court prefers to find no issue preclusion, but rather to decide independently whether East Mountain Road from Walling Road to the High Bridge is a public way. There also is presented here for the first time the further questions whether the High Bridge is part of the public way and whether the public way ends at the northerly terminus of the way, at a fork approximately seventy-five to one hundred yards north thereof or at Route 116 at the Savoy line.

It is only if said road is a public way that the town has any duty to keep it in repair. G. L. c. 84, §l provides that:

town ways ... shall be kept in repair at the expense of the town in which they are situated, so that they may be reasonably safe and convenient for travelers, with their horses, teams, vehicles and carriages at all seasons.

See Decker v. Boston, 321 Mass. 230 , 235 (1947); Vellante v. Watertown, 300 Mass. 207 , 208 (1938); W.D. Cowls, Inc. v. Woicekoski, Mass. App. Ct. (1979) [Note 3]; McCrory v. Springfield, 32 Mass. App. Dec. 77, 80 (W.D. 1965). No such duty attaches to "private ways" as used in G. L. c. 84, §§12-14 to mean,

defined ways for travel, not laid out by public authority or dedicated to public use, that are wholly the subject of private ownership, either by reason of the ownership of the land upon which they are laid out by the owner thereof (see Morse v. Stocker, 1 Allen 150 ; Munroe v. Worthington Pump & Machinery Corp. 245 Mass. 474 , 478) or by reason of ownership of easements of way over land of another person[,]

Opinion of the Justices, 313 Mass. 779 , 782-83 (1943), nor to "private ways open to the public use," defined as

ways that have been "opened and dedicated to the public use, which ... [have] not become ... public way[s] ...." [T]he use of the ways by the public is permissive and may be terminated at will by the owner of the way.

Id. at 784-85; see G. L. c. 84, §§22 et seq.

Prior to St. 1846, c. 203, §1 public ways could be created by dedication or prescription. St. 1786, c. 67 provided, in part, that:

The Selectmen of the several Towns in this Government, are hereby authorized and empowered, either personally, or by such other Person or Persons, as they shall appoint, to layout within their respective Towns, particular and private ways, for the use of such Town only; or for the use of one or more individuals thereof, or proprietors therein ....

Dedication, as authorized by this statute, "required an intent on the part of the landowner manifested by unequivocal declarations or acts to appropriate his land to a public use, Longley v. Worcester, 304 Mass. 580 , 587 [(1939)], and acceptance by the public authorities, either expressly or by implication. If Loriol v. Keene, 343 Mass. 358 , 360 (1961). The Court, in Commonwealth v. Coupe, 128 Mass. 63 , 64-65 (1880), summarized the early law as follows:

[Under St. 1786, c. 67], a highway by dedication could be created by the owner of the land dedicating the particular parcel to the use of the public for the purposes of a highway, and the acceptance of the gift, or the acquiescence in such use by the city or town bound to keep it in repair; and that, where such dedication was made and accepted, the land became subject to the easement of a public way. No specific length of time was necessary; the acts of the parties to the dedication, when once established, completed it.

In 1846, the legislature repealed St. 1786, c. 67 so that public ways could no longer be created by dedication. St. 1846, c. 203, §1 provided that no ways

hereafter opened and dedicated to the public use, shall become chargeable upon any city or town, unless such ways shall be laid out and established by such city or town, in the manner prescribed by the statutes of this Commonwealth.

This requirement has been retained by G. L. c. 84, §23. For a discussion of the statutory history of the creation of public ways, see Loriol v. Keene, supra at 360-61.

As is often the case with ancient ways, town records concerning the dedication, laying out or discontinuance are non-existent, indecipherable or incomplete. Hence, without the aid of town records, the courts, in determining whether a way is public have considered, as competent, evidence of public user, records of repairs or maintainence authorized by the town, under a claim by its officers that it was a public way, references to the way as a town road in deeds and plans, evidence that the town has installed public utilities in the way, and the liability of the town in damages to any traveler upon it who should suffer an injury through any defect or want of repair rendering it unsafe and inconvenient. Gower v. Saugus, 315 Mass. 677 , 681-83 (1944); Sullivan v. Worcester, 232 Mass. 111 , 114-15 (1919); Reed v. Mayo, 220 Mass. 565 , 567-68 (1915); Commonwealth v. Coupe, supra at 64-65; Commonwealth v. Inhabitants of Holliston, 107 Mass. 232 , 234 (1871); Henshaw v. Hunting, 1 Gray 203 , 216, 17 (1854).

In the instant case, the sale reference in the town records to a dedication and acceptance of what is now East Mountain Road is contained in the warrant for and minutes of a town meeting held on September 13, 1830 (Exhibits No. 23A and B). Article Second of the warrant concerned the partial discontinuance of a road located and accepted the prior year by the town. It read:

to See if the town By their Vote will discontinue a town road which was located last year By the Selectmen and afterward accepted by the town which is now under contract By James Burt from near Humphrey Anthonys Saw Mill to where it intersects with the path east of Benjamin Raymonds and in Lieu thereof to direct to direct [sic] the Selectmen or appoint a Committee to Locate a road on the North Side of the Brook from and to this Same places or nearly so - or establish the doings of the Selectmen in contracting the Building of this road with James Burt.

At the meeting, the partial discontinuance and relocation of the road was postponed until a committee of three viewed the situs. Action was taken, however, at a meeting held on September 23, 1830 wherein it was voted to discontinue "the road as Laid out by the Selectmen on the South Side of the Brook" and "[v]oted to accept the Road Located by Danies Brown, John Young and Rodman Hazard," members of the committee appointed previously.

On all the evidence I have no difficulty in finding that East Mountain Road is a public way as far as the High Bridge. I also find, although the matter of location nearly 150 years later is difficult, that the portion of the road northerly of the brook was relocated in 1830 and discontinued in 1833. It is unclear where the discontinuance of the road commenced. The article adopted by the town meeting was a vote to discontinue "the Town Road from the High Bridge so-called above Humphrey Anthony's sawmill to [the] Savoy line" (emphasis added). It is puzzling that various plans introduced into evidence show the public way continuing from the bridge to the fork hereinbefore mentioned (Exhibits No. 8, 9, 10 and 15), since the phraseology of the town meeting vote to discontinue the road northerly thereof specifically recited that the discontinuance was to be "from the High Bridge". Both from the usual meaning of "from" and by analogy to cases interpreting its definition in determining dates, I construe the language set forth above as exclusionary of the bridge which was to remain a part of the public way. This is consistent with the history of the structure. The town records are replete with evidence of repairs by the town to the bridge. The facts which I have found demonstrate that both the town and the pertinent state agency have dealt with the bridge as part of a public way.

That segment of the way north of the bridge is another matter. It would be possible, of course, to establish a public way by prescription. As was said in Commonwealth v. Coupe, supra at 65, a public way by prescription is "established upon evidence of user by the public, adverse and continuous for a period of twenty years or more; from which use arises a presumption of a reservation or grant, and the acceptance thereof, or that it has been laid out by the proper authorities, of which no record exists." See also Harvey v. Inhabitants of Sandwich, 256 Mass. 379 , 385 (1926). The evidence falls short, however, of establishing a public way by prescription northerly of the High Bridge after the official 1833 discontinuance. The evidence tended to show a sporadic use by residents of the town for activities customarily carried on in similar mountainous areas but without any showing of a claim of right and absent sufficient proof of town repair, snow removal, and the like to show that a public way was in existence. The instant case appears to be very similar to Gower v. Saugus, 315 Mass. 677 (1944), where the Supreme Judicial Court found Bridge Street to be a private, not a public, way, and as to that part of the road northerly of the bridge, I find that the plaintiff has failed to establish that it is a public way.

Various Massachusetts cases, involving recovery for personal injuries sustained from defective public ways, have discussed the duty of a municipality to keep its ways in repair.

A city or town performs its duty if it keeps its ways "reasonably" safe and convenient (G.L. [Ter. Ed.] c. 84, §1), and is not liable except for injuries caused by a defect or want of repair that "might have been remedied by reasonable care and diligence on" its part. §15 .... The expense of keeping ways in a high state of repair must be considered on the questions of reasonableness and diligence. Beaumier v. Heath, 282 Mass. 312 .

Vellante v. Watertown, supra at 208; accord, Becker v. Boston, Supra at 235 (character of way and kind and amount of travel relevant in determining whether defect actionable); Raymond v. Lowell, 6 Cush. 524 , 534-35 (1850) (duty imposed upon municipalities commensurate with location and nature of way). In ascertaining whether the failure to remedy a defect should not be regarded as a want of reasonable care and diligence of the town, it is competent evidence to show "the number of miles of streets ..., the valuation of the taxable property, the amount of money that could be raised by taxation, and the amount appropriated and expended for highways." O'Brien v. Woburn, 184 Mass. 598 , 599 (1904).

Beaumier v. Heath, 282 Mass. 312 (1933), involved an accident on a way, similar in many respects to East Mountain Road. In Beaumier, the road in question was described as "a gravel, narrow, back country road in an exceedingly stony country travelled very little and some days not at all. Vehicles had to follow one rut. The sides of the road sloped to let the water run off. Two automobiles could not pass ...." There was additional evidence that tile total assessed valuation of the town was $500,000 and there were fifty-three miles of dirt roads within the township. Id. at 313-14. The court held that the rut that caused the plaintiff's injuries was not an actionable defect because "[t]o maintain such roads in a condition so that automobiles can pass over them without unusual jounces would impose an impracticable burden upon such a town." Id. at 315. In the present case the town did not introduce any evidence to demonstrate impossibility of performance on its part insofar as a duty to repair the bridge is concerned. It is apparent, of course, that the duty need not encompass the erection of the type of bridge customary on a well traveled road in a metropolitan area but rather one suited to the paucity of travel to be anticipated upon it.

The practical problem with which the Court as well as the town is faced is the appropriate solution to the duty to repair should the town deem reconstruction of the bridge to service one house too expensive an alternative. There is no evidence to indicate that the provisions of G. L. c. 81, §26 or c. 85, §35 are available to Adams. That being so, the town must either elect to replace the bridge or vote at a town meeting to discontinue that part of the public way encompassing the bridge and award the plaintiffs damages as compensation therefor. Another possibility is the establishment of an alternative public way to afford access from the east to the plaintiffs and others on the north side of Tophet Brook. There may well be other avenues of action upon which the parties can agree after consultation.

The location of the boundary line between land of Mr. and Mrs. Shay and of the plaintiffs north of the High Bridge has not heretofore been judicially established, and on the evidence before me I cannot now fix it. The chain of title to the plaintiffs' land, however, reveals that both the plaintiffs and the Shays trace their title to a common grantor by whom the parcel now owned by the plaintiffs was conveyed out on March 4, 1857 and that of the Shays on November 1, 1858. The road northerly of the bridge had been discontinued at the time of these conveyances, and the only access to the plaintiffs' premises was across the remaining land of the common grantor. These facts give rise to the presumption of an implied easement, i.e., an easement by necessity from the High Bridge to land of the plaintiffs. Schmidt v. Quinn, 136 Mass. 575 , 576 (1884); Leonard v. Leonard, 2 Allen 543 , 545-46 (1861). It is well settled in Massachusetts that the owner of the servient tenement has no duty to keep the way in repair, and if the plain- tiffs wish to use such a way, they must both construct and maintain it. Archambault v. Williams, 359 Mass. 742 (1971) (rescript); Jones v. Percival, 5 Pick. 485 , 487 (1827); Roxbury v. Worcester Turnpike Corp. 2 Pick. 41 , 43 (1823).

Judgment accordingly.