LAWRENCE M. BELL, ROBIN ELLEN BELL KALB and LEONARD BELL vs. JEFFREY ELGHANAYAN, JANET GOLDNER and ELISE K. LEBOVIT, Trustee of Mallard Realty Trust, and TOWN OF GAY HEAD.

Even in the idyllic Town of Gay Head on the island of Martha's Vineyard in the County of Dukes County not all disputes can be amicably resolved. As the pleadings evolved in this action the issue became the rights of the defendants to use a strip of land approximately 8 to 10 feet in width constituting either a mere driveway to the plaintiffs' summer residence or a way in which the defendants had rights; upon the decision of this issue hinges the form of a permanent injunction depending on the prevailing party, again either to prohibit obstruction of the way [Note 1] or alternatively its use by the opponent. The plaintiffs Lawrence M. Bell, Robin Ellen Bell Kalb and Leonard Bell contend that the driveway was constructed by their father on his land for access to the site on which he built the home which he has now conveyed to them. The defendants conversely contend that the area in question was the location of an ancient way known as Old South Road, and that they have a right to use the same either as a right appurtenant to their respective premises based on prescriptive use or as members of the general public of Gay Head, Old South Road having become a public way by prescription.

The action originally was commenced pursuant to G.L. c. 41, §81BB on September 8, 1987 seeking a rescission of an endorsement by the Gay Head Planning Board of a subdivision plan to the effect that "approval under the subdivision control law was not required". The original complaint also sought the revocation of building and septic permits issued to the defendant Jeffrey Elghanayan. The complaints were thereafter amended successively so that the final pleading on behalf of the plaintiffs, the fourth amended complaint, has eliminated any question of the propriety of the action of the Planning Board and rests only on the determination of the question as to the existence of any rights of others in land of the plaintiff. The Town of Gay Head is a nominal party, and its counsel took no active part in the litigation after the questions concerning the Board were eliminated.

Defendants LeBovit and Elghanayan filed a counterclaim seeking judgments of a declaratory nature, as well as injunctive and monetary relief. In particular, LeBovit and Elghanayan seek a declaration that the way in dispute is a private way in which they have prescriptive rights, or alternatively, that the way in dispute is a public "ancient way" which may be used by the general public; preliminary and permanent injunctions prohibiting the Bells from blocking LeBovit's and Elghanayan's use of the disputed way, and money damages.

A trial was held on June 14 and June 23, 1988 at which the proceedings were electronically recorded and thereafter transcribed. The trial then was recessed for almost one year on the representation by counsel that the litigation would be settled as it should have been. The trial resumed on June 13, 1989 and continued on June 23 and September 12 of last year where, the final session was held in the courtroom in Edgartown. A stenographer was appointed to record and transcribe the testimony during the latter three days of the trial. After the conclusion of the hearing in Edgartown, a view was taken by the Court in the presence of counsel which included an examination of the way in question, the significant topographical features of the properties of the parties to the action, the general site and the area of Gay Head in which the locus is found. During the year long hiatus a preliminary injunction was issued by the Court dated August 5, 1988 which enjoined the plaintiffs from blocking the disputed way and limited the use thereof by the defendants.

At the trial ten witnesses were called: Lawrence Bell, a New York attorney and one of the plaintiffs, Harold Bell, the father of the plaintiffs, a predecessor in title and a professor at the Columbia University School of Architecture, Arthur Dixon, the contractor who constructed the present layout of the way, Elise K. LeBovit, a defendant, Jeffrey Elghanayan, a defendant, David Vanderhoop, a member of the Board of Selectmen of the Town of Gay Head, and a nearby resident, Douglas Owen Downing, a registered land surveyor who worked on some of the recorded plans, Frank J. Nuovo, a predecessor in title of the defendants, James Glavin, a contractor hired by Mr. Elghanayan to improve the way in order that he might bring in equipment for the home he had hoped to construct and Alfred Vanderhoop, a town elder. Thirty-nine exhibits, some with multiple parts, were introduced into evidence at the trial, four additional exhibits were marked for the purposes of identification only, four more exhibits were submitted post-trial under a stipulation signed by counsel for both parties, and a copy of the deed concerning the land once jointly owned by defendants Elghanayan and Goldner was provided at the Court's request and marked as an exhibit. [Note 2] Finally, an old photograph of Granville "Jack" Belain with oxen was offered at the trial, but by virtue of the picture's age and rarity the witness was allowed to keep it with the Court noting, and the record reflecting, its introduction. All exhibits are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. Gay Head, a sparsely populated community on Martha's Vineyard, was incorporated as a town in 1870, and in the act of incorporation, St. 1870, c. 213, there is a provision in §6 for the division of any or all of the common lands of said town by two commissioners to be appointed by the judge of probate of the County of Dukes County. Somewhat prior to this in 1863 the legislature had by St. 1863 c. 42, appointed the treasurer of the district of "Marshpee" to determine "all boundary lines between the individual owners of land located in the Indian District of Gay Head, in the County of Dukes County, and also to determine the boundary line between the common lands of said district and individual owners adjoining said common lands".

2. The relevant portion of the plan showing the work of the partition pursuant to St. 1870, c. 213, §6 (Exhibit No. 31) was introduced as Exhibit No. 30 and entitled "Plan of Gay Head showing a partition of the Common Lands as made by Joseph T. Pease and Richard L. Pease, Commissioners appointed by the Judge of Probate Under Section 6, Chapter 213 of the Acts of 1870". The commissioners neglected to grant any rights of way between certain of the lots and roads than extant. Consequently, in many early registration cases the Land Court has found ways by necessity for the benefit of either the land to be registered or adjoining parcels. See, for example, Registration Case No. 18090 where the land was registered subject to a right now appurtenant to a portion of the land of the defendant.

3. The plaintiffs acquired title to four adjoining parcels shown on the partition plan as Lots 58, 63, 212 and 213 [Note 3] by deed from Harold Bell dated March 30, 1972 and recorded in Book 297, Page 149 (Exhibit No. 4). All recording references herein are to the Dukes County Registry of Deeds, unless the context otherwise requires. Harold Bell purchased the parcels from John O. Vanderhoop by deed dated June 16, 1969 and recorded in Book 278, Page 394 (Exhibit No. 1). The deeds in the Bell chain of title do not refer to that part of Old South Road here in issue.

4. Elise LeBovit acquired title to Lots 3, 4, 5, 6 and 7 as shown on a plan entitled "A Plan of Land in Gay Head, Mass., prepared for Michael Fontes, Jr. . . . " by Schofield Brothers Inc. (Exhibit No. 12) from Frank J. Nuovo by deed dated July 22, 1980 and recorded in Book 375, Page 387 (Exhibit No. 9). This property comprised the major portion of the land formerly encompassed within Lot 56 on the partition plan commonly known as the "Belain Homestead". Nuovo had acquired title by a series of deeds from Michael Fontes, Jr. in 1980. The defendant LeBovit has redrawn the lot lines of the premises conveyed to her, and conveyed Lot 1 on a 1983 plan (Exhibit No. 15) to the defendant, Jeffrey Elghanayan and his then wife, Janet Goldner by deed dated December 2, 1983 and recorded in Book 408, Page 730 (Exhibit No. 10). The defendant Elghanayan was interested also in a second lot, but the consummation of this transaction was not completed because of the litigation. Mr. Elghanayan and his wife now have been divorced, and she has conveyed to him her interest in the above mentioned premises. She no longer has an interest in this litigation although she has not formally been dismissed a a party. The deed which reflects this transaction was dated October 5, 1988, recorded in Book 518, Page 600, and is Exhibit No. 40.

5. The way in dispute is a single track rutted road suitable for passage of one vehicle at a time with no accommodation for a turn-off. Access is obtained from an admittedly public way, known as Old South Road. At the public way there is a thirty (30) foot wide strip running northerly which then turns at an almost ninety (90) degree angle and continues northwesterly as a single track cartpath. There are three culverts beneath the road of which two were constructed on behalf of Harold Bell. The source of the third culvert is unknown. The first strip thirty (30) feet wide leading from the present public way into Lot 213 was constructed by Harold Bell and clearly was not part of the ancient way. He has granted rights to third parties across the strip to reach their lots which lie to the northeast and which are not involved in this litigation. The track upon which the way now lies rises steeply to the left as one progresses from the thirty (30) foot entrance. Originally the Bells located the driveway into their home from the way closer to the common boundary line of the property with Elghanayan and northwesterly of the present site, but it has since been relocated closer to the public way. The Bells then installed obstructions in the way, railroad ties, so that passage over the area which they originally had constructed would be impeded. The contractor, Arthur Dixon, who laid out the road for the Bells, testified that he had installed it.

6. In December of 1975 the Martha's Vineyard Commission rendered a decision designating the Island Road District as a district of critical planning concern (Exhibit No. 18). In §4.12 of the decision the Commission dealt with Cultural and Historic district: Special Ways. The paragraph reads as follows:

Special Ways, roads which have been virtually abandoned or left to infrequent use, are historical by definition. Also, by definition, however, they have not been part of Island life and commerce for some time. They are a unique resource because they provide public rights of way, but are not committed to major vehicular travel. They do tend to link origins and destinations that people will frequent; therefore they offer a resource which can be developed as a means to experience the Island landscape by slower means of transportation, such as walking, horseback riding, or possibly bicycling. This is clearly a case where proper development guidelines at this time could preserve the historic aspects of old rights-of-way while enhancing them for use by Island residents and visitors. Development near the Special Way is not so injurious as it might be along major vehicular transportation corridors, because it could be pleasant to walk or horseback ride through populated, as well as unpopulated areas. However, new vehicular roads in the area should be on new rights-of­way, thus preserving the Special Ways for alternative forms of transportation. [Note 4]

7. The Town of Gay Head subsequently adopted in its zoning by-law particular provisions applicable to special ways. Among the overlay districts for which provision is made in the zoning by­law is a special ways zone, the purpose of which is "To protect historic places, to retain these ways open primarily for uses such as walking and horseback riding, but not developed as a primary vehicle route except for access to properties where no alternative access exists". The boundaries of the special ways zone include all property within 200 feet of the center line of Old South Road.

8. The deeds in the chain of title to the Belain Homestead of which the defendants own a major portion do not include any rights specifically in Old South Road. There was a right appurtenant to the Belain parcel recognized across the property registered in Land Court Case No. 18090 based in part on necessity, prescription and stipulation. The title report prepared by John C. Larsen covered the history of the defendants' property insofar as it relates to record title and concluded that there was a right to use the Old South Road which very knowledgeable engineers, Hollis Smith and the witness, Douglas Downing, had placed in the approximate location of the road now before the Court. The plans of Gay Head, including the sketch which appears in the front of Exhibit No. 22, a paper prepared for the Dukes County Historical Society entitled "the Old South Road of Gay Head" by Edward S. Burgess dated July 1926 also generally locates the then Old South Road as running through the property of the parties hereto until it rejoins the state road just before the lighthouse and the famous cliffs.

9. The deeds in the defendants' chain of title contained no reference to any right to use the ancient way, but the conveyance by Fontes to Nuovo in 1980 for the first time included the specific grant of a right of way over Old South Road, an ancient way. This may well have stemmed from the Larsen title report, and the grant has been included in subsequent conveyances.

10. At annual Town Meetings from 1966 through 1969, the Town Meeting adopted articles authorizing the raising of money and its appropriation for the purpose of restoring various ancient ways in Gay Head; occasionally reference was made to Old South Road (Exhibit No. 27). Specifically, Article 15 was proposed and unanimously adopted at the March 8, 1966 Gay Head Town Meeting which authorized the Town to "raise by taxation the sum of $500.00 to be used for the minimum maintenance of ancient ways". No evidence was offered to the effect that the Town ever maintained the disputed way. Article 10 was proposed and adopted at the March 12, 1968 Annual Town Meeting authorizing the raising of $1,250.00 for "Chapter 90 new construction on Old South Road so called . . ." It is noted that a similar provision was adopted at the March 14, 1967 annual town meeting with a different sum approved. Article 12 was proposed and adopted at the March 12, 1968 Town Meeting authorizing the expenditure of funds raised by adoption the previous year for the removal of "overgrowth of brush on [other ancient ways including] Old South Road". Again, no evidence was offered at trial that such removal had been done. Article 23, proposed and adopted at the March 11, 1969 Town Meeting, again advanced the raising and appropriation of $500.00 "for the opening of ancient ways". In addition to these articles, Article 11 was proposed and adopted at the March 14, 1967 Town Meeting. Article 11 provided "to see if the Town will vote to accept the layout of the so called County Road, beginning at the west end of Old South Road Lane and westerly to Moshope Trail". This was not the road about which this dispute centers.

11. The ancient way was extended by Deca, Inc. at the order of defendants LeBovit and Elghanayan in the spring of 1987 from a point near the Bell home to the bar way. Loam was removed and sand and fill used to complete the surface, shrubs and tree limbs were trimmed.

12. Many years ago Old South Road was situated approximately in the location of the way which is the center of our dispute and was the southern route to reach the famous cliffs at the tip of the island. The northern route followed what is now State Road. Gradually the use by the public of the Old South Road diminished, and at some time not shown by the evidence it was relocated by the county. The layout is not before the Court so it is unclear whether the ancient way was abandoned. In the fairly recent past there has been some use of the ancient way by residets of Gay Head. The oxen owned by Granville Belain and which were pastured in what are now the defendant LeBovit's fields in years gone by were driven by him along the route of the way in dispute to reach a public road from the Belain Homestead.

13. On January 20, 1988 the Planning Board acted on an application filed by Joy LeBovit and Elghanayan seeking a special permit to use a portion of "Special Way, Old South Road" as required by local by-law provisions (Exhibit No. 28). The Board after a hearing by a unanimous vote decided it had no jurisdiction over the case regarding the question raised at the hearing as to the naure of the way, and that no special permit was necessary. The Board's position was that plans were approved by the Planning Board in 1980 and "that so much time has expired for questions of allowance of the subdivision plan that any further review should be unnecessary". The action taken hy the Board is not directly in issue in the case, and its propriety is not decided here. The defendants offered the decision at trial because of its tendency to show the Board's belief that the way was public for the purposes of ANR endorsement requirements.

As my findings have set forth, there indeed was an ancient way in the vicinity of the Bell way about which this dispute centers. Not only is it shown on the plans referred to above, but Exhibit No. 34 which is a portion of the atlas of Dukes County on file with the Land Court shows a way in the vicinity of the lots in question here. The Pease plan showing the Gay Head land set-offs pursuant to the 1866 Resolves also shows a way in the vicinity of that on the Atlas (Exhibit No. 19). It is difficult to tell from these small scale and inaccurate depictions just where the ancient way was located and its exact course. I find and rule, however, that it was in the approximate location in which Mr. Bell constructed the disputed way and that at one time it did continue through to Lot 56. I further find and rule that since the commissioners made no allowance for access to and from interior lots, it was customary in registering the titles to the lands set off in the partition to find a way by necessity. In the present case, however, the interior lots had become merged with adjoining lots having access to a public way, and so the necessity disappeared.

The defendants claim, however, that either the ancient way became public by prescription or they and their predecessors have acquired prescriptive rights to use it. Of course, to establish the acquisition of rights by prescription the burden was on the defendant to show that their use and that of their predecessors in title had been open, notorious, adverse and uninterrupted for a period of twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Tucker v. Poch, 321 Mass. 321 , 323 (1974); Brown v. Sneider, 9 Mass. App. Ct. 239 , 331 (1980). There is no evidence that the plaintiffs or those under whom they claim had used the way for at least twenty years except for that relating to the Belain oxen cart. It is uncertain whether Mr. Belain was a predecessor in title of the defendants, although it may be assumed that this is indeed the factual situation, or whether he was simply a resident of the Belain household. However, there is no evidence in the record to support a finding that he used the way for the required period of time. The defendants seek also to rely on the doctrine of color of title which is discussed in Norton v. West, 8 Mass. App. Ct. 348 , 351 (1979), but this doctrine applies only to adverse possession and hs never been held applicable where the lesser title, an easement by prescription, is sought to be established.

The more interesting question is one on which there is very little Massachusetts law, i.e., the nature of an ancient way and its public character. The rule as to the creation of a public way is well settled. Since 1846 there can be no public way by dedication by the landowner unless the definitive acts took place prior to such date. Of course public authority may still lay out a public way by compliance with the provisions of G.L. c. 79 et seq., but the adoption of the various articles at Town Meetings in 1966 through 1969 do not amount to the acts required to lay out a public way. More importantly to the jurisdiction of this Court, public bodies may acquire a public way by prescription. The rules for creating a public way have been most recently stated in Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83 (1979) where the court said:

In general, it may be said that an existing way in a city or town in this Commonwealth is not a "public" way - that is, one which a city or town has a duty to maintain free from defects (see G. L. c. 84, §§ 1, 15, 22; First National Bank v. Woburn, 192 Mass. 220 , 222- 223 [1906]) - unless it has become public in character in one of three ways: (1) a laying out by public authority in the manner prescribed by statute (see G. L. c. 82, §§ 1-32; (2) prescription; and (3) prior to 1846, a dedication by the owner to use public use, permanent and unequivocal (see Longley v. Worcester, 304 Mass. at 587-589; Uliasz v. Gillette, 357 Mass. at 104), coupled with an express or implied acceptance by the public. Because the 1846 statute put an end to the creation thereafter of public ways by dedication and acceptance (Loriol v.Keene, 343 Mass. 358 , 361 [1961]), it has only been possible since that time to create a public way by a laying out in the statutory manner or by prescription.

It would appear as a matter of law that there can be no public ways by dedication in Gay Head since there was no individual ownership of land until the partition which occurred after 1846 nor does there appear to have been a public body to accept the gift. For a dedication there must be an unequivocal donative intent on the part of the fee owner "and acceptance by public authorities", Loriol v. Keene, supra (8 Cush.) 195, 197 (1851).

The acquisition of public rights by prescription varies somewhat from those of an individual. It is not enough to show that the public use was open, notorious and adverse for a period of at least twenty years; it must also be shown that the way was used "as a public right . . . by facts which distinguish the use relied on from a rightful use by those who have a permissive right to travel over the private way". Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969) quoting Bullukian v. Franklin, 248 Mass. 151 , 155 (1924).

So-called "ancient roads" are streets which from time immemorial have been used by members of the public. Clark v. Hull, 184 Mass. 164 (1903); Puffer v. Beverly, 345 Mass. 396 (1963). Where as here there is no evidence of any public layout, a public way may still be established by prescription. There must, of course, be evidence to establish a use that is adverse and under claim of right for a period not less than twenty years. Once the way becomes public, it continues so until abandoned through statutory procedures. Witteveld v. City of Haverhill, 12 Mass. App. Ct. 876 (1981). Often the alteration of a layout constitutes a discontinuance of the former road. See Cohasset v. Moors, 204 Mass. 173 , 176 (1910). Cf. Bennet v. Clemence, 88 Mass. (6 Allen) 10 (1863). The relocation of Old South Road, if in fact that was its legal nature, is not before me and I therefore cannot rule on its effect on the prescriptive ancient way. The facts which I have found bring this case within the purview of Clark v. Hull, supra, which it closely resembles.

In sum, the historical significance and use of Old South Road by the Wampanoag Indian Tribe, as well as by Granville "Jack" Belain; maps which depict Old South Road, Ancient Way as following the course of the way in dispute, in particular the atlas of Dukes County on file at the Land Court (Exhibit No. 34); other documentary evidence such as the essay written by Edward S. Burgess (Exh. No. 22) taking the reader on an historical journey through the interior portions of Gay Head along Old South Road, Ancient Way; and conditions observed on the view taken by the Court, together with other relevant evidence lead to the conclusion that a portion of the plaintiffs' road indeed follows the route of Old South Road and that the public, o:f which the individual defendants are members, has the prescriptive right to use it. This does not apply to the thirty (30) foot wide portion which clearly deviates from the route of the ancient way.

I award no damages for as I have found the way in question to be public, it does not appear that the defendants have a private cause of action.