GERALD L. BRODMERKLE and MADELINE BRODMERKLE vs. TOWN OF ASHBY, THOMAS MAGUIRE and NANCY MAGUIRE.

The plaintiffs, Gerald L. Brodmerkle and Madeline Brodmerkle, allege that they are the owners of a certain parcel of land with the building thereon, situated on the northerly side of Whitney Road in Ashby in the County of Middlesex, and seek a determination in this action that Whitney Road is either a public way or a private way which they have a right to use for all purposes. The plaintiffs also sought relief against the defendants Thomas Maguire and Nancy Maguire, also abutters on Whitney Road, who, it is alleged, interfered with the installation of utilities in or along Whitney Road, to serve the plaintiffs. The defendants Maguire have been defaulted, and the installation of poles and wires for electricity and telephone completed. There remain two issues in this action, however: the first, raised by the complaint, is the nature of Whitney Road as a public or private road, and if the latter, the extent of the plaintiffs' rights therein ; and the second, raised by the defendant Town of Ashby's counterclaim, the occupancy by the plaintiffs of the locus without an occupancy permit issued by the building inspector of Ashby and without a certificate of compliance for the subsurface disposal system issued by the Nashoba Associated Boards of Health.

A trial was held at the Land Court on June 13, 1988 and at the Ayer District Court on September 8, 1988. At each session the proceedings were taped and have been transcribed. Five witnesses testified, and a total of fifteen exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on September 8, 1988.

On all the evidence, I find and rule as follows:

1. Whitney Road consists of three segments with varying characteristics. The first portion of the way from a public way known as Erickson Road is about .32 mile in length and has a tar surface with the second surface of about .31 mile having a gravel surface. The defendant Town apparently does not contest that these two segments, about .63 mile, form a public way. The Town regularly maintains and plows this part of Whitney Road. Whitney Road then continues on to the Ashburnham town line which is also the county line between Worcester and Middlesex counties; from the town and county line Whitney Road proceeds through Ashburnham. At one time Whitney Road was called Old County Road, presumably because it led not only from one town to another, but from one county to another. After State Route 119, which generally parallels this road, was built, the amount of traffic on it decreased.

2. It is apparent on the ground where the different segments of Whitney Road fall. Beyond the Maguires' property line the road narrows and is heavily overgrown by brush and trees along the sides thereof. The travelled area does not exceed eight feet in width, is interspersed with rock outcroppings and a journey over it is perilous, meant only for rugged forms of transport by those not faint of heart. Normal motor vehicles would have difficulty in traversing the road, and if they did, there is no place for one car to turn off if it met a vehicle coming in the opposite direction.

3. In the past there have been periods of time during which the Ashby Highway Department cut back the brush along at least a portion of the way and "gravelled" the road in order that logging operations might be carried out. Many years ago, the road also was used for horse and buggy traffic from Ashby to Ashburnham, but the use of it fell off sharply with the construction of the alternate road. At present, the Ashby Highway Department does nothing to the road beyond the property of the Maguires and in order to construct the road to a sufficient width for its heavy vehicles, such as snow plows, to traverse over it, there would have to be blasting of ledge and significant improvements made to it.

4. An ancient marker was found at the town and county line which marks the boundary of the towns of Ashby and Ashburnham. Records from the Secretary of State's office show on plans prepared in accordance with the provisions of chapter 50 of the Massachusetts Resolves of 1830, a road in the general location of Whitney or Old County Road. The Resolve, however, called for a study of both public and private ways (Exhibits Nos. 8 and 3). The 1909 atlas of the boundaries of Ashburnham (Exhibit No. 4), the 1875 atlas of Middlesex County, and an 1844 map of Ashby on file with the Middlesex County Commissioners (Exhibits Nos. 4, 6 and 7) all show such a road, although not in sufficient detail to reconstruct its layout today. No record has been found, however, of any laying out by the Ashby Selectmen of a town way. The former Superintendent of the Ashby Highway Department testified that he had prepared during his tenure of office a list of public ways which included Whitney Road, but the present Superintendent, who previously had served as a member of the Highway Department, had found no record of town involvement in the area of the property of the plaintiffs. The town has made no repairs in this area and done no plowing during the tenure of the latter witness.

5. The Building Inspector in office when the plaintiffs initially planned the construction of their home issued a building permit to the plaintiffs, but the plaintiffs have been unable to obtain approval of the septic system by the Nashoba Associated Boards of Health. The latter failure resulted in the plaintiffs inability to obtain an occupancy permit, but the plaintiffs and their family have been occupying the premises in any event. Continuing efforts are being made to resolve the latter problem, but at the time of the trial the necessary permit had not been obtained.

6. The deed by which the plaintiffs acquired title to their property on Whitney Road was not before the Court although it is referred to in the complaint and the description set forth therein is given at length. There is, however, a plan introduced as Exhibit No. 1 entitled "Land in Ashby, Mass. Surveyed for Herman C. and June E. Schultz, dated May, 1975" and recorded with Middlesex South District Deeds as Plan No. 583 of 1975 in Book 12815, Page 480, on which plaintiffs' land appears as Lot 1 containing 2.64 acres. The plan was endorsed by the Ashby Planning Board as not requiring approval under the subdivision control law. The plaintiffs' property, according to Exhibit No. 1, has frontage of approximately 600 feet on Whitney Road.

The initial question to be decided by the Court is whether the plaintiffs have a right to use Whitney Road as either a member of the general public using a public way, or as a private way appurtenant to their land.

The endorsement by the Planning Board constitutes its decision that Whitney Road is either, in the words of G.L. c. 41, §81L:

(a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.

It seems apparent to the Court and I so find and rule that Whitney Road from the Maguires' boundary line to the Ashburnham town line is not a public way. No evidence has been found that it was laid out in the usual manner, but it is still possible, of course, to establish a public way by prescription even though there no longer can be, since 1846, a public way by dedication. As was said in Commonwealth v. Coupe, 128 Mass. 63 (1830) : "a highway may be proved by long and continued use and enjoyment by the public, upon the ground that a conclusive presumption arises from such use that it had been originally laid out or established by competent authority. . ."

The Appeals Court approached this idea with caution in Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-4 (1979) although it did recognize that ways by prescription might be established upon evidence of user by the public adverse and continuous for a period of twenty years or more, from which use, says the Coupe Court (at page 65), "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." The history of the former use of this portion of Whitney Road lends support to the plaintiffs' position that Whitney Road formerly was a public way which once established must be formally discontinued. Also constituting some evidence thereof is the provision of G.L. c.42, §4 which reads as follows: "[t]he selectmen of contiguous towns shall, at the joint and equal expense of such towns, erect permanent stone monuments at every angle of their respective boundary lines and wherever a highway crosses such lines, . . ." (emphasis supplied) If Whitney Road were not such a highway, then the boundary marker is a "puzzlement".

Nonetheless, there is no present evidence that impels the conclusion that this portion of Whitney Road is public; indeed, the situation on the ground is such to strongly suggest otherwise. As probably the only person in the Commonwealth who has seen the ways litigated in Witteveld v. Haverhill, 12 Mass. App. Ct. 876 , 877 (1988), Fenn v. Middleborough, supra, and the present case, I find and rule that the Fenn standards must prevail, and by those criteria the plaintiffs have not proven, the burden being theirs, that this section of Whitney Road is public.

There can be no question, however, that if Whitney Road is not public, the plaintiffs have an appurtenant right to use it as a private way or perhaps as a private way open to public use. See Casagrande v. Town Clerk of Harvard, 377 Mass. 703 (1979). It has long been settled in Massachusetts that conveyances of property bounded by a way carry title to the middle line thereof together with a right to use the way. Brennan v. Decosta, 24 Mass. App. Ct. 968 (1987). This proposition is, of course, predicated upon the grantor's right to make such a grant, express or implied. The doctrine has been expanded recently, both by construction and by the General Court, so that the rights included when one has the benefit of a right of way are not only the right to pass and repass, on foot and in vehicles, but also the right to install utilities (see G.L. c. 187, §5. Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 (1980)). The right to use a way also includes the right to improve it so that the plaintiffs are free to bring Whitney Road up to standard at their expense if they should so elect.

The other aspect of the case is unfortunate. The Court cannot countenance a breach by the plaintiffs of the laws of the Commonwealth; the plaintiffs were wrong to occupy the premises without an occupancy permit, and their continued occupancy without an approved septic system could lead to serious health problems. The Town has requested that the Court enter an order requiring the plaintiffs to bring the subsurface disposal system into compliance with Title V and local health regulations no later than six months from the date of Judgment of this Court or to vacate the premises at that time until compliance is attained and a certificate of compliance issued by the Town or its agent. It will be so ordered. [Note 1]

Judgment accordingly.