DONALD M. JOHNSON, individually and as trustee of D.M.J. TRUST and RALPH C. PINO vs. TOWN OF ROCKPORT.

Few subjects in real estate law are as difficult to decipher as the nature of an ancient way supposedly extant since the reign of King George III. The plaintiffs in this action, Donald M. Johnson, individually and as trustee of D.M.J. Trust and Ralph C. Pino, both of Rockport in the County of Essex, seek a declaration by this Court that Squam Road within said town is a public way as the term is used in G.L. c. 84, §1, that said road is not reasonably safe and convenient for travelers, and that the Town of Rockport be ordered to make it so. The town disputes the plaintiffs' characterization of Squam Road, as described in the Complaint, as a public way, contends that it was not established pursuant to G.L. c. 84, §23 and that the determination as to the expenditure of town funds is not justiciable. The plaintiffs' standing to raise the issues has not been questioned.

A trial was held at the Land Court on May 24, 1991 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence, of which there were thirteen, are incorporated herein for the purpose of any appeal. The only witness was the plaintiff, Donald M. Johnson.

On all the evidence including a stipulation of facts entered into by the parties (Exhibit No. 1) I find and rule as follows:

1. Donald M. Johnson, Trustee of D.M.J. Realty Trust under a Declaration of Trust dated July 3, 1985 and recorded in the Essex South District Registry of Deeds (to which Registry all recording references herein refer) Book 7819, Page 521 is the owner of a certain parcel of land in said Rockport more particularly described in a deed to him, as trustee, from Bradford A. Bernardo dated July 3, 1985 and recorded in Book 7819, Page 536 (Exhibit No. 1-1). [Note 1]

2. The plaintiff Ralph Pino is the owner of a certain parcel of land located in said Rockport and conveyed to him by Carl G. Johnson et al by deed dated April 5, 1977 and recorded in Book 6336, Page 651 (Exhibit No. 1-2).

3. The Town of Rockport originally was a part of Gloucester and was commonly referred to as "Sandy Bay"; it was incorporated as a municipal corporation by Chapter 8 of the Acts of 1840 (Exhibit No. 1-3).

4. In the year 1765 certain inhabitants of the Town of Gloucester petitioned the Selectmen to lay out a way, the description of which is set forth and reported in the Gloucester Town Records, Book 3 at Pages 91-92, June 1766 (Exhibit No. 1-4).

5. The first two paragraphs of the application read:

Whereas Application has been made to the Subscribers [illegible] Men of Gloucester by sundry owners of the land [illegible] between Annisquam and Sandy Bay to lay out a Way from Squam [illegible] the Wood Lotts [sic] to Sandy Bay in the following Words, viz

To the Select Men of the Town of Gloucester, Gentlemen [illegible] the Owners of the Land and others all Inhabitants of the Town of Gloucester pray and desire you would be pleased to proceed and lay out a Way from Mr. Benjamin Davis's [illegible] thru the Wood Lots to Mr. John Poole's House, as we are satisfied it will be not only for the advantage of the whole Town but more for the use and Benefit of us Subscribers and your Petitioners.

6. After the description and the date of August 9, 1765 (almost exactly two hundred twenty-six years ago) appears this report of the action taken:

VOTED that the above Way be confirmed conditionally, viz that the Town will not pay any Thing to any Owner or Owners of the Land the said Way passes over; and that they have Liberty to alter the said Way when it may be done to advantage of the said Way.

7. The laws in effect at the time the way was laid out were Prov.L. 1693-4, c. 6 and Prov.L. 1713-14, c. 8 (Exhibit No. 1-5).

8. There is at the present time a road in the Town of Rockport called "Squam Road" running from Granite Street in a westerly direction toward the City of Gloucester.

9. Said Squam Road is paved at the intersection of Granite Street, turns into a gravel or hardpacked surface which continues until it comes to a locked gate erected by the Town of Rockport. Beyond the gate there is an unimproved, grass covered path of varying width.

10. There is no record of a layout or acceptance of the aforementioned Squam Road in the records of the Town of Rockport.

11. The City of Gloucester has abandoned a part of Squam Road, known as Revere Street in Gloucester (Exhibit No. 6). The City's 1988 plan shows by dotted lines a way crossing the city/town line at the location of a bound thereon (Exhibit No. 6). See also a plan entitled "Plan of Land in Gloucester, Mass. Drawn by City of Gloucester" dated July 5, 1977 by John W. Parsons, recorded in Plan Book 159, Plan 20 (Exhibit No. 3). The latter plan shows wood lots and ways on the Gloucester side of the line.

12. The plaintiff Johnson had a subdivision plan prepared by John W. Parsons (presumably the same person who drafted Exhibit No. 3) which placed his land as abutting "Squam Path" and with the northerly corner just southerly of the monument on the line. However, Mr. Parsons now is dead, and there is no evidence before me to substantiate the location of the Holland/Pino land.

The plaintiffs argue that Squam Road is a public way which the defendant Town has a duty to keep in repair so that it is "reasonably safe and convenient for travelers. . ." G.L. c. 84, §1. Classification of a way, particularly one that predates the United States, is a difficult problem. The question arises frequently in controversies centered about municipal liability for injuries suffered within a way for its alleged defects, but it also is raised by problems presented by the Subdivision Control Law, the Land Registration Act and as here, a municipal duty to repair.

The law is well settled that since 1846 public ways within the Commonwealth cannot be created by dedication, and that an existing way can only have become public by a layout out by public authority in the manner prescribed by statute, prescription and prior to 1846 a dedication by its owner to public use, permanent and unequivocal. Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). Since the way in question here was created prior to 1846, the 1846 limitation is inapplicable. See Loriol v. Keene, 343 Mass. 358 , 361 (1961). There was insufficient evidence as to use of the way for me to find that it became public by prescription sometime after the original colonial action. Rather the Court must review the effect of the eighteenth century steps.

There are three categories within which Massachusetts ways may fall: public, private and statutory private ways. Casagrande v. Town Clerk of Harvard, 377 Mass. 703 (1979). In Casagrande the Supreme Judicial Court held that the way there in question was a statutory private way and that land abutting on it was not exempted from the definition of a subdivision in G.L. c. 41, §81L. It is indeed true that there are many decisions of the Supreme Judicial Court that treat a statutory private way as a public way in substance, and they are collected in Casagrande at page 707. If, of course, Squam Road was ever public, it remains such until it is legally discontinued. Mahan v. Town of Rockport, 287 Mass. 34 (1934). That portion in Gloucester apparently now has been discontinued. Rockport never has taken this step.

It is unclear, however, where on the ground the way falls. [Note 2] Even were it where the plaintiffs contend, it would seem that Squam Road from Gloucester to Sandy Bay was laid out for the benefit of certain early residents who filed their petition with the Gloucester selectmen. If so, it would be a statutory private way. This question is dealt with squarely in Flagg v. Flagg, 16 Gray 175 , 178-79 (1860) as follows:

By St. 1786, c. 67, §1, which embodied the provincial statutes directing the method of laying out highways and other roads in a town, no distinction is made between those ways which were established for "the use of such town only," and those which were laid out "for the use of one or more individuals thereof or proprietors therein." The term "private or particular way" is there used, not to designate or define the use or purpose for which it was laid out, or the nature or extent of the easement which is created, but in contradistinction to a highway or public road, which was not confined within the boundaries or territory of a town, but extended from town to town or place to place, and which could be laid out only by the court of sessions. Nor was it intended by the phrases "for the use of such town only," or "for the use of one or more individuals thereof or proprietors therein," to limit the easement or rights created by the way to the inhabitants of the town or the owners of land therein, or to particular individuals, but to describe it as a road for local accommodation and convenience, which the selectmen were empowered to lay out at the expense of the town or the persons who would receive the greatest benefit from the establishment of the way. . . . It follows that the argument, in support of the position that a private way laid out by a town for the use or benefit of individuals creates only a right personal to those for whose convenience and accommodation it was originally established or appurtenant to their estates, is not sustained by a just interpretation of the words of the statute.

Accord Butchers' Slaughtering & Melting Assoc. v. City of Boston, 139 Mass. 290 , 291 (1885); Opinion of the Justices, 313 Mass. 779 , 782-83 (1943); Dedham v. County Commissioners of Bristol, 108 Mass. 202 , 204-05 (1871).

As found in Woodward v. Leominster et al, Land Court Miscellaneous Case No. 86353 (1978),

Where the intent to dedicate is in dispute, courts have considered, as competent evidence, whether the way has been used by the public, whether the city or town has repaired or worked on the road, under a claim by its officers that it was a public way, whether deeds have referred to the way as public and whether the municipality could be held liable in damages to any traveller upon who should suffer any injury through any defect or want of repair, rendering it unsafe and inconvenient. Reed v. Mayo, 220 Mass. 565 , 567-68 (1915); Commonwealth v. Coupe, supra, at 64-65; Commonwealth v. Matthews, 122 Mass. 60 , 63-64 (1877); Commonwealth v. Inhabitants of Holliston, 107 Mass. 232 , 234 (1871); Henshaw v. Hunting, 1 Gray 203 , 216-17 (1854).

Flagg certainly suggests that whether laid out for the benefit of the town or the landowners pursuant to provincial statutes the way is public with the distinction being between the type of public way. In recent years the categorization is important primarily because of the definition of a "subdivision" in G.L. c. 41, §81L and indeed that is the reason for the present litigation since an appeal from the failure to obtain a planning board endorsement is the subject of Superior Court litigation. In fact the question as to whether the road is public is not necessarily determinative so far as the Planning Board is concerned. See Perry v. Planning Board of Nantucket, 15 Mass. App. Ct. 144 (1983). Casagrande is, however, a more recent pronouncement that Flagg by the Supreme Judicial Court, of the status of a way like Squam Road, wherever it may be located. It is not a public way in the sense that term commonly is understood, and it is not within the power of this Court to order improvements to be made to it. As was said by the now Chief Justice of the First Circuit Court of Appeals in United States v. 125.07 Acres of Land, More or Less, 707 F.2d 11 (1983) it is "a kind of road for which neither town, county nor Commonwealth bears upkeep responsibility."

Having made my own findings of fact and rulings of law I do not specifically act on those filed by the town.

Judgment accordingly.