REG 12-43472

October 1, 2014

Dukes, ss.



On June 6, 2012, Plaintiffs Roger D. Matthews and Martha’s Vineyard Savings Bank, as Trustees of the McKacou Realty Trust (Trust) filed a petition for registration and confirmation of title to approximately 90 acres of undeveloped land in West Tisbury (Premises). The Premises are located off Island Farms Road and Old Holmes Hole Mail Road (also known as Old Mail Road or Old Holmes Hole Road). The Town of West Tisbury and the Martha’s Vineyard Land Bank Commission filed Answers on April 10, 2013. Several subsequent defaults and withdrawals have left the Town of West Tisbury (Town) and the Commonwealth of Massachusetts (Commonwealth) with the sole remaining appearances. [Note 1] The Town asserts that the public holds prescriptive easement rights in and over a certain way located on the Premises, specifically an ancient way known as Old Coach Road. [Note 2]

The Trust moved for summary judgment on March 5, 2014, and the Town filed an opposition on April 29, 2014. On June 30, 2014, the Trust filed a reply brief and a Motion to Strike certain documents and affidavits attached to the Town’s opposition. The Town opposed the Motion to Strike and a hearing on both motions took place on July 1, 2014, at which all parties except the Commonwealth appeared and were heard. The Trust submitted a statement of material facts with its motion, and the Town responded in its opposition with its own statement of additional material facts. While there are many disputed facts between the parties, the disputed facts are not material to the disposition of this case. The undisputed material facts are set forth below.

Material Facts

The Trust seeks to confirm title to the Premises, extending to the centerline of Old Homes Mail Road, which bounds the Premises to the east. [Note 3] The Plan depicts a “Private Pole Line” that follows a six-foot wide path extending across the Premises. A dirt road intersects the Pole Line and corresponding path at the northern boundary of the Premises, and turns into a path to the east of the Pole Line. The Town claims that this portion of the path is an extension or continuation of Old Coach Road that connects to Old Holmes Mail Road via the four-foot path shown on the Plan, and that the public has certain rights in the four-foot way and the Private Pole Line, specifically for foot, bicycle and equestrian traffic. [Note 4] The portion of the path at issue is referred to as the “Way” or alternatively “Old Coach Road.” [Note 5] The Trust denies that the disputed portion of the path is an extension of Old Coach Road and also denies that the path has been used by the public or the Town.

The U.S. Postal Service established a post office at the western end of Old Holmes Mail Road in 1828 (the West Tisbury post office) and established a second office in approximately 1850 on State Road in West Tisbury (the North Tisbury post office). In support of its claim of public rights, the Town alleges that mail carriers used the Way from 1879 to 1904, and that this use most likely started earlier and extended longer than this time frame. Relying on the affidavits and exhibits it submitted, the Town infers that Old Coach Road was the only available route for mail carriers to access the post offices, that they used the route for such purposes, and maintained the road as part of their use. [Note 6]

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“Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. Gen.Motors Corp., 410 Mass. 706 , 711 (1991).

This burden “may be discharged by showing that there is an absence of evidence to support the non-moving party's case.” Kourouvacilis, 410 Mass. at 711, citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the moving party does not have the burden of proof at trial, as is the case here, it may demonstrate the absence of a triable issue on summary judgment either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Commc’ns Corp., 410 Mass. 805 , 809 (1991). Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323–24. This case is ripe for summary judgment because the material facts are not in dispute and the case may be decided based on applicable law. For the reasons discussed below, Plaintiffs’ Motion for Summary Judgment is GRANTED.

I. Defendant Town Of West Tisbury Failed To Carry Its Burden Of Proof That It Acquired Public Rights In The Way By Prescription

An existing way in a city or town acquires status as a public way in one of three ways: “(1) a laying out by public authority, in the manner prescribed by statute; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public.” McLaughlin v. Town of Marblehead, 68 Mass. App. Ct. 490 , 495 (2007), citing Martin v. Bldg. Inspector of Freetown, 38 Mass. App. Ct. 509 , 510 (1995); Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). As the proponent of the public rights in the way, the Town bears the burden of proof. McLaughlin, 68 Mass. App. Ct. at 495.

At oral argument, the Town focused on the second category as the means by which it acquired public rights in the Way. It produced no evidence that it or another public authority laid out the Way and therefore cannot establish that the Way became public by as prescribed by statute. The Town also failed to produce evidence that the Way was dedicated to public use prior to 1846 and accepted by the Town. The Town did obtain evidence through discovery that it claims indicates the Way may have been established during the early 1800s, prior to 1846. [Note 7] However, this proves at best that Old Coach Road itself may have existed prior to 1896, not that it may be considered a public way. The third category outlined in McLaughlin requires a dedication that is “deliberate, unequivocal and decisive, manifesting a clear intention permanently to abandon [the owner’s] property to the specific public use.” Longley v. City of Worcester, 304 Mass. 580 , 588 (1939) (citations omitted). The public must then accept the dedication by either “some express act . . . or by strong implication arising from obvious convenience, or frequent and long-continued use, repairing, lighting or other significant acts, of persons competent to act for the public in that behalf.” Id. at 586 (citations omitted). The Town has produced no evidence of either a deliberate dedication or an express or implied public acceptance.

The elements required to establish a public way by prescription mirror those required for any general prescriptive easement. The party seeking the prescriptive easement must prove the continuous, open, notorious and adverse use of another’s land for a period of twenty years. McLaughlin, 68 Mass. App. Ct. at 495; Fenn, 7 Mass. App. Ct. at 83-84. When the party claiming a prescriptive easement is a municipality, the additional element of “corporate action” is required. Daley v. Swampscott, 11 Mass. App. Ct. 822 , 827-28 (1981). Although this term has not been explicitly defined, a town establishes sufficient corporate action by exercising “dominion and control over the land in its corporate capacity through authorized acts of its employees, agents or representatives to conduct or maintain a public use thereon for the general benefit of its inhabitants.” McLaughlin, 68 Mass. App. Ct. at 499, citing Daley, 11 Mass App. Ct. at 829.

To support its claim of public rights in the Way, the Town urges this court to draw several favorable inferences from the evidence it proffers: affidavits of two West Tisbury residents and several documents and exhibits, all of which will be discussed in greater detail below. Evidence submitted at the summary judgment stage is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). The court must also draw “all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). However, the opposing party cannot rely on favorable inferences alone and must provide more than just “bald conclusions’” as a means of defeating summary judgment. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

The Trust moved to strike many of the Town’s documents, as well as both affidavits submitted with the Town’s opposition in their entirety, attacking the various documents as irrelevant, unauthenticated, lacking probative value and containing hearsay. The Trust argued that the affidavits of John S. Alley and Attorney Robert McCarron were “speculative, non- factual and based on inadmissible evidence, or otherwise [lacking] independent evidentiary support.” The Trust also moved to strike the numbered paragraphs in the Town’s statement of additional facts corresponding to the challenged documents. The court declines to rule on the Trust’s motion to strike at this time, in order to demonstrate that even if the court accepts the Town’s evidence as admissible and then views it, as required, in the light most favorable to the Town, the Town still fails to establish a prescriptive right for the public over the Way as a matter of law.

Attorney Robert McCarron states in his affidavit that, as a lawyer specializing in real estate law on Martha’s Vineyard since 1992, he reviewed and examined the numerous titles at issue in this case and describes the existence of two separate post offices in West Tisbury in the nineteenth and twentieth centuries: a post office established in 1828 at the intersection of what was once Edgartown Road and Old County Road (the West Tisbury post office) and one located in North Tisbury (the North Tisbury post office), established at some point between 1850 to 1870. [Note 8] Attorney McCarron also relied on layouts of the State Highway system from 1897 and 1904 as well as deeds and plans referring to Old Coach Road as “the Road from Vineyard Haven to West Tisbury, the Road from Vineyard Haven to the North Tisbury Post Office, the Road from Middletown to Vineyard Haven and the West Tisbury North Route Road.” Based on this information, McCarron himself “infer[s]” that this was “more likely than not” the route used by mail carriers to transport mail to the North Tisbury post office.

John S. Alley (Alley) states in his affidavit that his late father and brother, two former West Tisbury postmasters, told him mail was delivered to the North Tisbury post office (North Tisbury is a section of West Tisbury) via Old Holmes Hole Road and Old Coach Road. Prior to the advent of the automobile, the post office used horse-drawn carriages. Mr. Alley also stated that, as the North Tisbury Cemetery Superintendent, he used Old Coach Road to reach the cemetery and “when necessary, [he] would cut overgrowth or remove fallen tree limbs to facilitate [his] access . . . .” Based on this experience, Mr. Alley states “it is reasonable to assume that mail carriers . . . would have taken similar measures with respect to . . . Old Coach Road, when necessary.”

At oral argument, the Town urged the court to accept the premise, based on the affidavits of McCarron and Alley, the layouts of the state highway and the various references to Old Coach Road in prior deeds and record instruments, that Old Coach Road represented the most direct route to the North Tisbury post office in the nineteenth and early twentieth centuries. Pairing this premise with the inference that in the days of delivering mail by horse-drawn stagecoach, mail carriers would select the most direct route, the Town concludes that Old Coach Road must have been the route they used most often, if not exclusively. The Town then supposes, based on Alley’s affidavit, that if one person maintained a path by clearing it of brush and overgrowth, other similarly situated individuals must have done the same. Thus, if mail carriers used the Way in the nineteenth century, they must have maintained and cleared it in order to do so.

The Town’s argument that it exercised “corporate action” over the Way hinges on the court making several inferences, drawn purely from other inferences. Even if the court accepts all of the Town’s evidence and draws all inferences in its favor, the Town fails to prove the elements required to establish the Way as a public way. The affidavits of Mr. Alley and Attorney McCarron provide only a tenuous connection between the Town and the Way. The court cannot turn speculation and bare assertions into the material facts necessary to defeat summary judgment. Alternatively, even if the Town’s assertions were factually solid, they prove only that mail carriers—federal employees of the U.S. Postal Service—may have used and maintained the Way for some period of time.

The Town has provided no link between any municipal actions and the Way that would give rise to corporate action. Additional time and investigation is unlikely to uncover a different result, as the parties have had ample time for discovery. When specifically asked by the court at oral argument whether it expects to introduce new material at trial, the Town stated that very little additional evidence would be presented. [Note 9] Parties seeking to establish a public easement must clear a high evidentiary bar. See, e.g., Alexander v. Juchno, 21 LCR 621 , 636-37 (2013) (Misc. 437103) (Foster, J.). The Town, in failing to provide evidence that it exercised sufficient dominion and control over the Way that would constitute corporate action, has not met that bar.

Accordingly, the court finds and rules that the Premises are not subject to any rights of the public, outside of the rights already conceded by the Trust, and agreed upon by the parties, and that the Town holds no right, title or interest in the disputed Way.

So ordered.


[Note 1] Shirley Van Der Schueren filed an Answer on April 17, 2013, and Jordan Ronson filed an Answer on June 12, 2013. Ms.Van Der Schueren was defaulted on November 26, 2013, for failure to answer interrogatories, and Mr. Ronson withdrew his Answer on March 9, 2014. The M. V. Land Bank withdrew its appearance and Answer on January 2, 2014. On January 26, 2014, the Trust moved pursuant to Mass. R. Civ. P. 55(a) to default all parties who failed to answer, which was allowed on February 25, 2014.

[Note 2] At the hearing on the motion for summary judgment, the Commonwealth did not appear. The court advised the parties to obtain documentation from the Commonwealth confirming its non-involvement. To date, the Commonwealth has not been defaulted or withdrawn from the case.

[Note 3] See Ex. 1 in App. to Pls.’ Mot. Summ. J. (“Plan of Land in West Tisbury, Mass.” dated October 29, 2010) (the Plan).

[Note 4] The Town does not seek to confirm public rights to use motorized vehicles.

[Note 5] Old Holmes Hole Mail Road, also known as Old Holmes Hole Road, forms the eastern boundary of the Premises, and a three-foot wide path runs across the southwestern corner of the Premises. The Trust concedes that public rights exist over both of these ways.

[Note 6] During discovery, the Town’s responses to document requests and interrogatories implied it sought public prescriptive rights in the Way in order to access the West Tisbury Dump/Landfill, located at 46 Old Stage Road. This argument appears to have been dropped, with the Town’s written opposition to summary judgment and oral argument focusing exclusively on public rights established by mail carriers. In any event, the Town failed to produce any evidence that the Town maintained the Way in order to reach the landfill.

[Note 7] The Town cites minutes from a 1750 Proprietors Meeting, which do not expressly refer to an Old Coach Road, but instead refer to “Holmes Hole Road.”

[Note 8] McCarron bases his testimony in part on information gleaned from Banks’ History of Martha’s Vineyard, Vol. II, and the Massachusetts Historical Commission. The building housing the North Tisbury post office was built in 1850, and postal records as well as records from the Massachusetts Bureau of Statistics first reference the North Tisbury post office in 1870.

[Note 9] The Town stated it planned to call an expert to discuss the references contained in the deeds and other record documents, provide additional maps from the “turn of the century,” and requested that the court take a view of the Way. However, even if offered, this evidence would shed little additional light on the Town’s burden to prove public rights in the Way, and a view of the Way in 2014 likely would not inform the court regarding the issues presented.