MISC 144333

May 1, 1992

Barnstable, ss.



This is a suit to determine the status of a way known as "Great Hay Road" ("the Way") in the Town of Mashpee. Plaintiff seeks a determination that the Way is a public way as defined in G.L. c. 41, §81L and accordingly suitable for development and/or subdivision purposes. Plaintiff seeks a further determination that the Town be required to provide access via Great Hay Road that is safe and convenient for travel for purposes of permitting a subdivision.

This matter was submitted on an agreed statement of facts accompanied by Exhibits A through M which are incorporated herein. The pertinent facts thereunder are:

1. Plaintiff is the owner of a parcel of land on Great Hay Road and maintains that said way is a public way which the Town of Mashpee is required to maintain, the Town denies it is a public way.

2. The portion of the Way at issue lies between its intersections with Great Neck Road and with De Grasse Road, both public ways pursuant to lay-outs.

3. What is now the Town of Mashpee was organized by the General court in 1834 as the District of Mashpee, the land thereon being owned in common by its proprietors, who were the descendants of the original Indian inhabitants.

4. In 1834, Indians were not considered citizens of the Commonwealth. Under the law, they were treated as adult minors.

5. In 1842, the General Court authorized a partition of the land held in common by the proprietors. Such lands were to be set off in severalty to the individual proprietors and those lands and all other land held or acquired by them were to have all the instances of estates in fee, except the right of transfer, conveyance, or devise to other than a proprietor.

6. Plaintiff's property was set off from the common lands in 1842 to Mercy Edwards. Said set-off is recorded in Mashpee Book I, Page 165, Barnstable Registry.

7. By Ch. 463 of the Acts of 1869, the General Court declared all Indians and people of color to be citizens of the Commonwealth and in addition allowed Indians to own any land set off to them in fee simple.

8. The Town was incorporated by Ch. 293 of the Acts of 1870. That Act also transferred all common lands not yet set off to the Town, and further provided that upon application of the Selectmen, any justice of the Superior Court could appoint three commissioners to make partition of the common lands and further to examine and define the boundaries of the lands rightfully held by individual owners, and to properly describe and set forth the same in writing, and the title and boundaries so set forth and described being approved by the Court shall be confirmed by decree.

9. Pursuant to a petition by the Selectmen in 1870, the Superior Court appointed three commissioners to sell the common lands and to make a record of the title and boundaries of all individual owners. In accordance with that order and apparently after extensive public meetings, the Commissioners so acted setting forth their findings in a bound volume now on file with the Clerk of the Barnstable Superior Court. A copy is recorded at the Registry designated Mashpee Book II. The boundaries were later confirmed by decree of the Court (Superior Court Record Book IV, pp. 281-286).

10. Sometime thereafter one Cyrus Cahoon, a land surveyor, and also one of the Commissioners created a map of the Town. Said map is dated 1877 and shows land boundaries of the individual parcels and the names of the owners. That map is generally accepted as correctly showing the boundaries of land in Mashpee.

11. Plaintiff's land is described as land of Samuel Godfrey in Mashpee Book II, page 183. In that description the easterly line of Great Hay Road creates the westerly boundary of said land. That boundary description has remained constant in all subsequent transfers up to and including the deed into Plaintiff.

12. The Way, as defined in Finding Number 2 above, is presently a dirt road four to eight feet in width. I further find from the records of the Land Court that the way appears as an unimproved road in the current, 1974 U.S. Geological Survey Map, as a "poor public or private road" on the 1943 map, and does not appear at all on the 1887 map.

13. There is no evidence whatsoever that the Town has ever laid out or accepted Great Hay Road as a public way pursuant to G.L. c. 82, §24.

14. The Way has never been improved, nor has it ever been abandoned under G.L. c. 82, §32A.

15. Since at least 1983, the Mashpee Department of Public Works has periodically graded the Way and kept it clear of brush. The road has been snowplowed from time to time. There are no street signs nor traffic controls on the Way.

16. The Town has accepted the provisions of G.L. c. 40, §6C.

17. The Town owns land held for conservation purposes which fronts on the Way. The area abutting the Way is rural and wooded. There are no buildings abutting on the Way and no driveways entering onto the Way.

18. Great Hay Road has been open and used by the public for a period in excess of twenty years. The use of the Way by the public has been very sparse over the twenty year period.

In addition to the statement of agreed facts and exhibits, both parties filed briefs.

In consideration of all of the foregoing, I cannot find that Great Hay Road in Mashpee is a public way nor a way otherwise defined in G.L. c. 41, §81L.

G.L.c. 41, §81L exempts from subdivision control a tract with frontage on (a) a public way or a way which the clerk of the . . . town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordace with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the . . . town . . . having in the opinion of the planning board sufficient width . . . to provide for the needs of vehicular traffic . . . etc.

Plaintiff does not argue that the Way meets the requirements of the second clause of (a) or of (b) or (c) above. He argues that it is a public way.

It is well settled that when the existence of a public way is claimed, the burden of proof is on the one so claiming. Witteveld v. Haverhill, 12 Mass. App. Ct. 876 (1981); Commonwealth v. Hayden, 354 Mass. 727 , 728 (1968).

It would further appear that a way is not "a public way" -­ that is, one which a town has a duty to maintain free from defects -- 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) by prescription; or (3) prior to 1846, by a dedication by the owner to public use, permanently and unequivocally, coupled with an express or implied acceptance by the public. (See G.L. c. 84, §23); Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83, 84 (1979).

The parties agree that there has been no laying out or taking of the Way in accordance with any statute.

There is no evidence of a dedication prior to 1848. Moreover, it would appear that from the very nature of land ownership in Mashpee prior to 1864, a dedication as required would not have been possible. In addition there is no evidence that the Way even existed prior to 1870.

As to the third possibility, prescription, the facts are that while the Way has been open and used by the public for a period in excess of twenty years, such use by the public has been very sparse. (Finding Number 18; Agreed Statement Number 31).

I do not find that a "very sparse use" is such as would meet the standards of Ryan v. Stavros, 348 Mass. 251 (1964) or Ottavia v. Savarese, 338 Mass. 330 , 333 (1959) were Plaintiff seeking an easement, much less does it meet the requirement for a public way by prescription as set fort in Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969) where it is stated:

That there was continued use by the public for more than twenty years does not in itself raise a presumption that such use was adverse. To establish such a use the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.

Even if Plaintiff established a public way by prescription, it would appear from Fenn, supra, that the duties of the Town would be limited to keeping the Way free from defects. Futhermore, since the extent of such easement is fixed by the use through which it is created, Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962), any prescriptive rght of the public in the Way would extend only to the road as it currently exists on the ground and not to the adjacent land necessary to creat a 40 foot lay-out.

Plaintiff has argued that the Way is public because it is owned by the Town. While I view the ownership issue moot in light of the foregoing, I find no support for the theory that the Town property becomes a "public way" by virtue of such ownership.

Presumably, the 1870 "confirmation" recognized Great Hay Road as a means of access to what is now Plaintiff's property, although the 1870 findings also show the land bounded easterly by another way, which apparently has long since disappeared. Plaintiff quite likely has a right to pass and repass to his property, but that is not the issue herein and I do not so decide.

Great Hay Road appears to be an example of "a kind of road for which neither town, county nor Commonwealth bears upkeep responsibility." United States v. 125.07 Acres of Land, More or Less, 707 F.2d 11 (1983). Accordingly, I find that Great Hay Road in Mashpee is not a public way or a way as otherwise defined in G.L. c. 41, §81L.

Judgment accordingly.