Introduction and Facts
Plaintiffs Gerald and Madeline Brodmerkle (the Brodmerkles) filed this case in September of 1987 against Defendants Town of Ashby (the Town) and Thomas and Nancy Maguire (the Maguires), seeking declaratory and injunctive relief with respect to the ownership of a way in Ashby called Whitney Road, as well as their rights to use Whitney Road to run utilities lines to their property, located at 365 Whitney Road. The Maguires, at that time, owned land on both sides of Whitney Road easterly of the Brodmerkles property, and allegedlywere preventing the Brodmerkles from using Whitney Road to install utilities. [Note 1] The Brodmerkles thus sought a declaratory judgment, declaring that they had a right to run utilities under Whitney Road, and injunctive relief, estopping the Maguires from barring the Brodmerkles efforts to do so. [Note 2]
In short, the crux of this case was whether the Brodmerkles had a right to install utilities under Whitney Road. The ownership of that road was an ancillary issue as to which the Brodmerkles sought a declaratory judgment en route to their desired outcome.
A two-day trial in this case was held on June 13, 1988 and September 8, 1988, with the court (Sullivan, C.J.) taking a site view on the second day of trial. Five witnesses testified and fifteen exhibits were admitted into evidence at trial. On February 24, 1989, the court issued an eight-page decision (the Decision) and a judgment (the Judgment).
In the Decision, Judge Sullivan described Whitney Road as follows:
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. . . . [Note 3] Whitney Road then continues on to the Ashburnham town line . . . . [Note 4]
Decision at 2. With respect to the public or private status of the first two segments of Whitney Road, the Decision states only that [t]he 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. Id.
Turning next to the third section of Whitney Road, the Decision states as follows:
Beyond the Maguires property line the road narrows and is heavily overgrown by brush and trees along the sides thereof. The travelled [sic] 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.
Id. at 2-3. [Note 5] Further, [n]o record has been found [ ] of any laying out by the Ashby Selectmen of a town way. Id. at 4. The town has made no repairs in this area and [has] done no plowing during the tenure of the [then-present Ashby Highway Department Superintendent]. Id.
Based on these facts, the court held that Whitney Road from the Maguires boundary line to the Ashburnham town line is not a public way. Id. at 5. As reasoning for this conclusion, the court stated that the [Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979)] standards must prevail, and by those criteria the plaintiffs have not proven, the burden being theirs, that this section of Whitney Road is public. Id. at 6-7. However, the court continued, 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. Id. at 7. [Note 6] [Note 7]
Despite issuing each of these rulings in the Decision, in the Judgment, Judge Sullivan adjudged and ordered, with respect to the Brodmerkles claims, only that:
the portion of Whitney Road adjacent to land of the plaintiffs shown as Lot 1 on [the ANR Plan] is not a public way, but it is a private way which the plaintiffs, as appurtenant to their land, have a right to use for all purposes including the installation of utilities . . . .
Judgment at 1. [Note 8]
On its face, this provision of the Judgment makes no reference at all to the Paved and Unpaved Segments of Whitney Road. And, while the Decision makes reference to the Maguires property (i.e., Lot 2), the Judgment discusses only the Brodmerkles property (i.e., Lot 1), which does not abut Lot 2. Further, as it refers only to the portion of Whitney Road adjacent to land of the [Brodmerkles], the Judgment appears (based upon the depiction of Whitney Road in the ANR Plan) to have adjudged private only a part of the Unpaved Segment of Whitney Road. [Note 9] Thus, because it is silent as to the Brodmerkles rights in the remainder of the Unpaved Segment of Whitney Road, the Judgment would appear to have effected only incomplete relief with respect to the parties dispute at that time. In addition, as to the Paved Segment of Whitney Road (as to which [t]he defendant Town apparently does not contest . . . form[s] a public way), the Judgment makes no formal ruling whatsoever as to its public or private nature. [Note 10]
The Decision and Judgment were entered on February 24, 1989. Neither party appealed or sought to amend or correct the Judgment with respect to the Paved Segment of Whitney Road, namely whether it was public or private, [Note 11] nor whether the Brodmerkles could use all of Whitney Road for access and utilities (i.e., not just the portion thereof adjacent to Lot 1). [Note 12] The Brodmerkles utilities were apparently installed sometime thereafter. The dispute having been fully and finally resolved, the case was closed. The court did not hear from the parties for nearly twenty-seven years.
On November 20, 2015, the Brodmerkles resurfaced, filing a motion styled as a Mass. R. Civ. P. 60(a) motion seeking clarification or to correct clerical mistake[s] in the Decision and Judgment (the Motion for Clarification). Since the time that the Decision and Judgment entered, circumstances have changed. The matter of utilities was apparently no longer in dispute. The Maguires have since deceased, and their propertywas purchased by Andrew and Jacquelyn McElwain (the McElwains). [Note 13] Once again, however, neighborly tensions have flared, this time between the Brodmerkles and their new neighbors, the McElwains. [Note 14]
The dispute now has to do with the removal of snow, specifically, who is responsible for doing so, which implicates the public/private status of Whitney Road. The Town -- as presumably had been its practice for years -- would plow only the Paved Segment of Whitney Road, which, as shown on the annotated ANR Plan annexed to the Brodmerkles motion, ended at a point less than fifty percent along the frontage of Lot 2, starting on the easterly boundary (about 37%). As alleged by the Brodmerkles, the Town would clear snow up to that point, pushing it onto (the vacant) Lot 2 and use a turnaround on Lot 2 to exit back to Erickson Road. [Note 15] West of that point, the Brodmerkles were left to their own devices for snow removal.
At some point (the Brodmerkles provide no specifics), the Brodmerkles allegedly started following suit, dumping the snow from the area of Whitney Road beyond where the Town would plow in the same location on Lot 2 where the Town dumped the snow it plowed. However, recently (again, the Brodmerkles provide no specifics), the McElwains have allegedly begun to take issue with this practice, even going so far as to have a harassment prevention order taken out against Mr. Brodmerkle. [Note 16]
As noted, the facts surrounding this present dispute are somewhat murky. [Note 17] Nonetheless, the Brodmerkles now come before this court requesting clarification and/or correction of the Decision and Judgment with respect to the exact location of the dividing line between the private section and the public section (if any) of Whitney Road. [Note 18] They thus urge this court to issue a specific finding as to the location of the public/private dividing line in Whitney Road -- namely, that it is located at the east/west boundary line between Lot 2 and Lot 3, and thus that the Town is obligated to plow to that line, thereby providing access to Lots 1 and 3.
By Order dated December 2, 2015 (the 2015 Order), this court (Sands, J.) denied the Brodmerkles Motion for Clarification, holding as follows: [the] [c]ase is 27 years old. The file cannot be found. [The Brodmerkles] should file a new case to clarify anyambiguities in [the] Decision and Judgment. On December 18, 2015, the Brodmerkles filed a notice of appeal of the 2015 Order and a motion for reconsideration of the 2015 Order (the Motion for Reconsideration). [Note 19]
The Motion for Reconsideration
Before turning to the merits of the Motion for Clarification -- to the extent this court can do so on the limited record presented -- the Motion for Reconsideration must be dealt with. A motion seeking clarification or correction of a twenty-seven year old Decision and Judgment long after the dispute that gave rise to the lawsuit has been resolved (i.e. the utilities dispute) is highly irregular, as is the fact that the Brodmerkles now seek such relief for entirely different reasons (i.e. the plowing dispute).
It is true that the Judgment did not include specific determinations with respect to the public or private nature of the entire length of Whitney Road, despite the facts that (a) the Brodmerkles Complaint sought such relief, and (b) the Decision appears to have ruled (at least in part) on this question. However, upon the courts review of the Decision, it would seemthat Judge Sullivan simply found no need to make definitive findings, in the Judgment, as to the exact location of the public/private dividing line because she had determined that, whether Whitney Road was public or private, the Brodmerkles had a right to use it to run utilities. She was apparently correct in that estimation, since, with the actual substance of the original dispute resolved, no party raised any issue relative to that dividing line -- until now.
The main problem with the Motion for Clarification was that, at the time it was filed, the original case file could not be located. It -- or, more accurately, a large portion of it -- has since been located in the courts archives. [Note 20] The Brodmerkles now insist that, rather than commencing a new case against the McElwains and the Town relative to the present dispute over plowing, the relief they want is clarification of a twenty-seven year old Decision and Judgment, on a limited record, on the issue of the public/private dividing line in Whitney Road in order to resolve a different dispute from the original one involving different people.
While highly irregular, because the court file has now been located, this court will seek to do what it can with respect to the Brodmerkles request. [Note 21] Thus, the Motion for Reconsideration of the December 2, 2015 Order is ALLOWED. The court thus proceeds to the merits of the Motion for Clarification.
The Motion for Clarification
Motions for clarification of decisions and/or judgments are not provided for either in the Massachusetts Rules of Civil Procedure or the Land Court Rules. Thus, motions seeking clarification are typically interpreted as falling under (and governed by) Mass. R. Civ. P. 59(e), which provides for motions to alter or amend judgments. However, because motions under that section must be filed within ten days after entry of judgment, the Brodmerkles would have had to file their motion on or before March 6, 1989. Their motion would thus have been 9,755 days overdue. As such, the Brodmerkles motion cannot be acted upon as a Rule 59(e) motion.
As noted by the Town in its opposition to the Motion for Clarification, motions for post-judgment relief not fitting under Mass. R. Civ. P. 59(e) are interpreted as falling under Mass. R. Civ. P. 60(b), which provides for relief from judgments or orders due to mistake, inadvertence, excusable neglect, newly-discovered evidence, fraud, misconduct, and other bases -- none of which appear to be present here. [Note 22] Moreover, even if such grounds did exist, any motion under that section must be made within a reasonable time, and, in most cases, not more than one year after the judgment, order or proceeding was entered or taken. Thus, the Brodmerkles also cannot seek relief under Rule 60(b).
This leaves only Rule 60(a), which permits correction of [c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission . . . at any time of [the courts] own initiative or on the motion of any party and after such notice, if any, as the court orders. Mass. R. Civ. P. 60(a); see also OMalley v. OMalley, 419 Mass. 377 , 380 (1995) (a finding of clerical error is proper when a judge fails to communicate in judgment what has been established by the record); Gagnon v. Fontaine, 36 Mass. App. Ct. 393 , 396 (1994) (The court may rectify a judgment to indicate properly what relief, if any, a judge intended it to effect.). The Brodmerkles ask this court to find that the omission from the Decision and Judgment of a specific finding as to the dividing line between the public and private sections of Whitney Road -- as well as the discrepancy between Judge Sullivans determinations in the Decision and what the Judgment actually declared -- constituted such a clerical mistake. See discussion, supra, at pp. 2-4 for my detailed recitation of the discrepancies between the Decision and Judgment. [Note 23]
The Brodmerkles attempt to bring their motion within the ambit of Rule 60(a) is a stretch -- an attempt to squeeze a square peg into a round hole. [Note 24] However, as a matter of judicial economy, in order to avoid future litigation, the court deems it appropriate to attempt to clarify (read: correct) the Decision and Judgment to the extent possible.
As noted above, in the Decision, Whitney Road is described as consist[ing] of three segments with varying characteristics, as to which segments, Judge Sullivan noted, [i]t is apparent on the ground where the different segments of Whitney Road fall. The first two of these segments (which were, together, defined above as the Paved Segment of Whitney Road) are described as follows:
The first [segment] 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 [segment] 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.
The third segment of Whitney Road (defined above as the Unpaved Segment of Whitney Road) is described as follows: 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. [Note 25] As to this segment, Judge Sullivan further commented that:
Beyond the Maguires property line the road narrows and is heavily overgrown by brush and trees along the sides thereof. The travelled [sic] 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.
Further, [n]o record has been found [ ] of any laying out by the Ashby Selectmen of a town way. And, [t]he town has made no repairs in this area and [has] done no plowing during the tenure of the [then-present Ashby Highway Department Superintendent]. Based on these facts, the court held that Whitney Road from the Maguires boundary line to the Ashburnham town line is not a public way. In the Judgment, however, the court stated only that the portion of Whitney Road adjacent to land of the plaintiffs shown as Lot 1 on [the ANR Plan] is not a public way.
The Decision and Judgment are clearly problematic in severalnotable ways. First, as discussed below, the courts observation that the Town does not contest that the Paved Segment of Whitney Road is public; a review of their answer in this case shows that the Town did dispute that. Second, it is concerning that the relief issued in the Judgment does not match up precisely with the courts ancillary holdings in the Decision. These issues clearly must be cleared up.
The Brodmerkles, however, urge this court to go even further. Even if, they argue, the Decision and Judgment did match up, the Decision itself is still ambiguous because it does not specify which property line of Lot 2 to which Judge Sullivan intended to refer. [Note 26] Thus, the Brodmerkles urge, this court should find that Judge Sullivan meant to refer to the western edge of Lot 2. Not only that, they further argue that, based upon Judge Sullivans holdings in the Decision, the Judgment should have affirmatively adjudged the area of Whitney Road east of that point to be a public way. Doing so, they suggest, would be the only way to make sense of Judge Sullivans determination that the conveyance to the Brodmerkles of Lot 1 bounded by a way carr[ied] title to the middle line thereof together with a right to use the way.
This court disagrees. The Brodmerkles are correct that, by operation of the Derelict Fee Statute, the conveyance to them of Lot 1 included the fee in the area of Whitney Road adjacent to Lot 1 to the center line thereof. However, they are not correct that the fact that Judge Sullivan further found that said grant of Lot 1 also came together with a right to use the way necessarily entails that the area of Whitney Road past their property line was public, as that is not the only possible basis for the determination that they had rights in the full length of Whitney Road. For instance, in the case of a grant of land bounded on a way the right [ ] acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way . . . . Casella v. Sneierson, 325 Mass. 85 , 89 (1949).
Here, the Decision reaches the conclusion that the Brodmerkles have a right to use Whitney Road to run utilities without ruling on the question of how that right might have arisen, which had not been raised as an issue in the case. Rather, it concludes more generally simply that the grantor had rights in Whitney Road, which said grantor conveyed appurtenant to Lot 1, and thus that the plaintiffs have an appurtenant right to use it as a private way or perhaps as a private way open to public use. Such an appurtenant right could have been an express, deeded easement somewhere in the chain of title to the Brodmerkles property, G. L. c. 183, § 15, an easement by necessity, Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933), or an implied access easement based on the layout of Whitney Road in a recorded plan, Hickey v. Pathways Assn, Inc., 472 Mass. 735 , 754 (2015). It need not have been because any portion of Whitney Road was public. [Note 27]
In any event, this court is not convinced that Judge Sullivans reference to the Maguires property line was meant to be determinative of the public/private dividing line in Whitney Road. That phrase was simply part of Judge Sullivans broader description of Whitney Road as a whole, and, in particular, the section thereof that she conclusively found to be private (i.e., the Unpaved Segment of Whitney Road). As noted in the Decision, [i]t is apparent on the ground where the different segments of Whitney Road fall. The most straightforward reading of this sentence is as a reference to the different road surfaces in the three sections of Whitney Road: the first two segments having, respectively, a (0.32 mile long) tar surface and a (0.31 mile long) gravel surface (together forming the Paved Segment of Whitney Road), and the third having an unimproved surface (the Unpaved Segment of Whitney Road). Thus, wherever the Paved Segment of Whitney Road ended, it was approximately there that the conclusively private portion of Whitney Road started. That Judge Sullivan proceeded from there to discuss the area [b]eyond the Maguires property line does not suggest that she intended to equate the Maguires property line with the dividing line between the (conclusively) private portion of Whitney Road and the (possibly public) portion thereof.
Additionally, nothing in the evidentiary record suggests that the Paved Segment of Whitney Road (as to which [t]he defendant Town apparently does not contest . . . form[s] a public way) terminated at either of the boundaries of Lot 2. Rather, the evidence indicates that it terminated somewhere between the east and west boundaries of Lot 2. [Note 28] Thus, the Brodmerkles suggested reading of the Decision would result in inconsistent holdings: one suggesting that the public/private dividing line was located 0.63 miles west of Erickson Road (approximately at the location where the gravel surface of the second segment of Whitney Road ended), and the other suggesting that the public/private dividing line was located at one of the two boundaries of Lot 2.
The court declines to read such inconsistency into the Decision. Rather, the far more reasonable reading of the Decision would simply be that Judge Sullivans discussion of the area of Whitney Road [b]eyond the Maguires property line was meant merely as an elaboration on the physical characteristics of the Unpaved Segment of Whitney Road (all of which was unpaved, some of which was narrowed, some overgrown, some interspersed with rock outcroppings, etc.), and not as an indication of where the public/private dividing line was found, as there was already an explicit way to measure where that line was located: by measuring 0.63 miles from Erickson Road. [Note 29]
Moreover, irrespective of any reference to any lot line in the Decision, the only trial evidence suggesting that any portion of Whitney Road might have been public was the evidence pertaining to the Towns maintenance and upkeep of Whitney Road. [Note 30] That evidence established that such activities occurred regularly only on the Paved Segment of Whitney Road. With respect to the Unpaved Segment of Whitney Road, Judge Sullivan found that the Town maintained the road itself only sporadically. [Note 31] As to that area, Judge Sullivan found [n]o record . . . of any laying out by the [Town] of a town way, no record of town involvement, and no repairs in this area and [ ] no plowing. [Note 32] In sum, the court found that 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.
The Brodmerkles, as Plaintiffs, bore the burden of proof on that point at trial -- as they do now. With that in mind, the court concludes that the Decision is properly interpreted as finding that the only section of Whitney Road that was possibly a public way was the Paved Segment of Whitney Road (i.e., the portion thereof running from its intersection with Erickson Road westerly for 0.63 miles), which could have become a public way by prescription as a result of the the publics regular use of that section of Whitney Road, coupled with the regular municipal activity of the Town to maintain and upkeep that portion of Whitney Road. By implication, therefore, the Unpaved Segment of Whitney Road was a private way (in which the Brodmerkles had appurtenant easement rights) -- findings that were specifically incorporated into the Judgment.
Not incorporated in the Judgment, however, is how Judge Sullivan intended to rule as to the public/private nature of the Paved Segment of Whitney Road. As noted above, the Decision discusses facts suggesting that the Paved Segment of Whitney Road might have become a public way by prescription based upon the Towns maintenance and upkeep of Whitney Road. However, the only determination of law (to the extent it can be described as such) as to the public/private nature of the Paved Segment of Whitney Road in the Decision is the statement that [t]he defendant Town apparently does not contest that [the Paved Segment of Whitney Road], about .63 mile, form[s] a public way. This, however, as noted above, does not appear to have been correct, based on a review of the Towns answer, which clearly does contest that proposition.
It is unclear why Judge Sullivan made this statement in the Decision, as the Towns pleadings clearly state that the Town did dispute this issue -- as they continue to do to this day. While the Towns trial brief and pleadings did not dispute that it maintained the Paved Segment of Whitney Road (noting specifically that it maintains [the Paved Segment of Whitney Road] by winter plowing, by oiling and tarring the [tarred] section every three to four years, and by graveling the [gravel segment] of the road when needed), the Town does not appear to have conceded that the Paved Segment of Whitney Road had become public as a result of such activities.
If Judge Sullivan had intended to rule affirmatively that the Paved Segment of Whitney Road had become public as a result of these admitted activities, it would stand to reason that the Decision would have included some discussion of the legal basis for reaching such a conclusion. [Note 33] No such discussion is present in the Decision. And, while the trial evidence might have supported a finding against the Town on that question, and in favor of the Brodmerkles -- namely, that this 0.63 mile section of Whitney Road had become a public way by prescription -- this court cannot make such a finding on the limited record without clear indication that Judge Sullivan intended to make it. Thus, to the extent that the Brodmerkles sought to have anyportion of Whitney Road declared a public way (either in the original trial or on their present motion), they have not carried their burden of proof.
In sum, the most this court can say at this juncture is that (a) the Unpaved Segment of Whitney Road is definitively private (a ruling already contained in the Judgment), but (b) the Paved Segment of Whitney Road is possibly public. [Note 34] In order to rule conclusively on whether the Paved Segment of Whitney Road is, in fact, public, the Brodmerkles (or the Town) would need to file a new case seeking such a determination, which would require a new trial, a compilation of a full evidentiary record, and notice to all parties possibly affected by such a determination (including the McElwains) [Note 35] in order to give them the opportunity to appear and be heard. [Note 36]
Based upon the foregoing discussion, the court ALLOWS the Motion for Clarification solely to the following extent. A corrected Judgment (the Corrected Judgment) will issue forthwith stating that, based upon this courts review of the Decision and the courts intent expressed therein, the following changes are hereby made. First, the second paragraph of the Judgment [Note 37] is vacated and replaced with the following language: ADJUDGED and ORDERED that the Unpaved Segment of Whitney Road, defined in the Decision of even date hereof as the portion of Whitney Road located westerly of the Paved Segment of Whitney Road (defined in the Decision of even date hereof as the 0.63 mile segment of said road running westerly from its intersection with Erickson Road) is not a public way, but it is a private way which the Brodmerkles, as appurtenant to their land, have a right to use for all purposes including the installation of utilities. Second, the Corrected Judgment will further provide that the Brodmerkles have, as appurtenant to their land, a right to use the entire length of Whitney Road as a right of way for all purposes including the installation of utilities. Third, it will further provide that the third paragraph of the Judgment (pertaining to the Towns counterclaim, which no longer appears to be an issue in this case) remains in full force and effect, unchanged by the Corrected Judgment. In all other respects, the Brodmerkles motion (including, specifically, their request that this court now declare the Paved Portion of Whitney Road to be public) is DENIED.
A Corrected Judgment to that effect will issue of even date hereof.
[Note 1] The properties at issue are depicted on a May 1975 approval-not-required plan entitled Land in Ashby, Mass. Surveyed for Herman C. & June E. Schultz, which was prepared by Charles A. Perkins Co., Inc., approved by the Ashby Planning Board on May 13, 1975, and recorded in the Middlesex (South) Registry of Deeds (the Registry) as Plan 583 of 1975 at Book 12815, Page 480 (the ANR Plan), an annotated copy of which was attached to the Brodmerkles motion for clarification as Exhibit 1. The ANR Plan depicts three lots on the northerly side of Whitney Road. The Brodmerkles property at issue in this case is lot 1" on the ANR Plan (Lot 1"). See Deed (Galeski to Brodmerkle), Registry at Book 16357, Page 197. The Maguires owned lot 2" on the ANR Plan (a vacant lot to the east of Lot 1) (Lot 2"), as well as another lot across Whitney Road from lot 2" (on which the Maguires resided) (the McElwain House Lot), which is not depicted on the ANR plan. See Deed (Specht to Maguire), Registry at Book 14185, Page 383. Also shown on the ANR Plan is a lot 3" (Lot 3"), a T-shaped lot with a strip of land providing frontage to Lot 3 on Whitney Road running between Lots 1 and 2. Deeds of record show that the Brodmerkles only owned Lot 1 at the time this case was originally litigated, but later also purchased Lot 3 in 1999. See Deed (Whittlesey to Brodmerkle), Registry at Book 30474, Page 144.
[Note 2] The Maguires never appeared in this case, and thus were defaulted. The Town did appear and answer on October 8, 1987. The Towns Answer, among other things, denied that Whitney Road was a public way, and raised a counterclaim against the Brodmerkles for alleged municipal code violations relating to the Brodmerkles installation of a septic system on Lot 1.
[Note 3] These first two segments of Whitney Road, together, are hereby defined as the Paved Segment of Whitney Road.
[Note 4] This third segment of Whitney Road is hereby defined as the Unpaved Segment of Whitney Road.
[Note 5] Further, the court held: [a]t 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. Id. at 3.
[Note 6] Further, the court continued: 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. 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. Id. at 7.
[Note 7] As to the Towns counterclaim, the court held the plaintiffs have been unable to obtain approval of [their] septic system . . . result[ing] in the plaintiffs inability to obtain an occupancy permit, but the plaintiffs and their family have been occupying the premises in any event. Decision at 4. Based on these facts, the court held that a declaratory judgment should issue 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. Id. at 7-8. In issuing such relief, the court noted that the Land Courts jurisdiction was questionable, but that no objection to such jurisdiction had been raised. See id. at 8, n. 1.
[Note 8] On the Towns counterclaim, the Judgment declared that the plaintiffs must bring a subsurface disposal system on Lot 1 into compliance with Title V and local health regulations no later than six months from the date of this Judgment, or vacate the premises at that time until compliance is attained and a certificate of compliance issued by the Town or its agent.
[Note 9] As shown on the annotated copy of the ANR Plan (annexed to the Brodmerkles motion as Exhibit 1), the Paved Segment of Whitney Road (i.e., the 0.63 mile section plowed and maintained bythe Town) stops several hundred feet to the east of the Brodmerkles Lot 1.
[Note 10] The Town does not appear to have ever disputed that the Brodmerkles were entitled to run utilities under the Paved Section of Whitney Road.
[Note 11] Perhaps this can be explained by the fact that, although determining whether Whitney Road was public or private was certainly relevant to the outcome of the case, it was not the central reason the Brodmerkles brought this suit. Less understandable is the Towns reasoning for not objecting to the statement in the Decision that [t]he defendant Town apparently does not contest that [the Paved Section of Whitney Road], about .63 mile, form[s] a public way since, as noted above, that issue was specifically disputed in the Towns Answer.
[Note 12] The fact that the ANR Plan was endorsed by the Ashby Planning Board as a Form A plan implies a finding by the Board that the entire length of Whitney Road at that time had, at minimum, 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. G.L. c. 41, § 81L. However, the question of whether Whitney Road was statutorily adequate for utilities purposes is different from the question of whether the Brodmerkles had rights to run utilities. That question, it seems, was left partially unanswered by the Judgment.
[Note 13] Specifically, Lot 2 and the McElwain House Lot (across Whitney Road from Lot 2) were purchased by the McElwains by deed dated August 27, 2009 and recorded in the Registry at Book 53502, Page 19.
[Note 14] While the Brodmerkles motion contains a certificate of service to all parties or their counsel of record, there is no indication that the Brodmerkles actually have apprised the McElwains (not parties to this case) of their attempts to have this case reopened, nor sought to make them parties to this case.
[Note 15] This plowing was up to the McElwains drivewayon the McElwain House Lot, allowing the McElwains access to Erickson Road.
[Note 16] The Brodmerkles allege that this was done as retaliation for the Brodmerkles having reported the McElwains to municipal authorities for an alleged safety hazard on the McElwains property. The harassment prevention order was allegedlyissued bydefault, and the Brodmerkles allege that Mr. Brodmerkle is fighting its issuance. Once again, no specifics were provided by the Brodmerkles.
[Note 17] For instance, the Brodmerkles do not explain why they cannot simply plow snow from Whitney Road onto their own property, or onto some other property whose owner is willing to accommodate it. They also do not claim to have obtained prescriptive rights to use Lot 2 to dump snow -- nor could any such claim be adjudicated in this action, since the McElwains are not parties to it.
[Note 18] At the same time, however, the Brodmerkles acknowledge that [i]t is not that the Judgment is unclear, necessarily, it just does not assist in resolving the ambiguities in the Decision. The Brodmerkles real issue is simply that the Judgment was silent as to the public/private dividing line in Whitney Road, and, if that issue were to be decided in the Brodmerkles favor, such a ruling would be advantageous to their present position. That their present dispute has little, if anything, to do with the dispute that actually occasioned this lawsuit is glossed over by the Brodmerkles.
[Note 19] No action has been taken with respect to the Brodmerkles appeal due to the pendency of the Motion for Reconsideration. The Corrected Judgment issued today makes any action relative to the appeal moot.
[Note 20] The trial exhibits, chalks, and transcripts still have not been located.
[Note 21] As noted below, there is a limit to what this court can now do based both on the limited record and the fact that the McElwains are not parties to this case.
[Note 22] The Mass. R. Civ. P. 60(b) grounds are: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) , (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. On a generous reading of this statute, the Motion for Reconsideration might fall under subsection (1) or (6), but even those are a stretch.
[Note 23] Most notably, whereas the Decision, when discussing the private segment of Whitney Road, references Whitney Road from the Maguires boundary line to the Ashburnham town line and the area of Whitney Road [b]eyond the Maguires property line, the Judgment references only the portion of Whitney Road adjacent to land of the plaintiffs shown as Lot 1 on [the ANR Plan].
[Note 24] As noted, the surviving record is limited. Only the parties trial briefs and the Decision and Judgment (as well as several other non-substantive documents) remain extant. None of the original attorneys remain involved, nor is there any indication that they might be able to provide copies of trial exhibits or transcripts. Judge Sullivan passed away nearly a decade ago. Yet, despite the passage of over twenty-seven years, never before did any party suggest that there was a mistake in the Judgment. The Judgment simply effectuated the outcome that the Brodmerkles had sought (a finding of rights to run utilities under Whitney Road), irrespective of the public/private nature of Whitney Road.
In view of these considerations, as well as the sheer irregularity of what the Brodmerkles now seek, this court can ascertain no reason why bringing the Motion for Clarification (and then appealing this courts initial denial of same and filing the Motion for Reconsideration) might have been preferable to the Brodmerkles to, as this court suggested, simply filing a new case other than the fact that it might have enabled the Brodmerkles to obtain the relief they seek without having to involve the McElwains, who might oppose the relief they seek.
[Note 25] While the Decision states that Whitney Road continues westward to the Ashburnham town line, the aerial photograph annexed to the Brodmerkles motion papers as Exhibit 2 shows that Whitney Road today stops approximately at the easterly boundary of Lot 1, where it turns northerly and forms a driveway onto that lot. Apparently, at some point, Whitney Road west of that point became disused -- not altogether unsurprising, given its rough condition and the fact that, as noted in the Decision, [a]fter State Route 119, which generally parallels this road, was built, the amount of traffic on [Whitney Road] decreased.
[Note 26] Recall that the Maguires owned two lots (as do their successors, the McElwains): Lot 2, and the lot across Whitney Road from Lot 2 (the McElwain House Lot).
[Note 27] Moreover, the Brodmerkles argument here overlooks the fact that, at the time the Decision and Judgment issued, the Brodmerkles did not own Lot 3. They only owned Lot 1. They did not come to own Lot 3 until 1999. Thus, even if the conveyance to the Brodmerkles of Lot 1 bounded by a way carr[ied] title to the middle line thereof together with a right to use the way, interpreting the Maguires property line to refer to the western line of Lot 2 would still have left the section of Whitney Road adjacent to Lot 3 private. That they subsequently acquired Lot 3 makes no difference on this point.
[Note 28] On this point, it is notable that the aerial photograph annexed to the Brodmerkles motion (a Google Earth satellite image of the area) shows Whitney Road narrowing just beyond the McElwains driveway (located across Whitney Road from Lot 2 at a point between the east and west boundaries of Lot 2), at which point the terrain surrounding Whitney Road changes from an open lawn to an area of dense forest. Moreover, based on the scale of the Google Earth depiction of the properties, the distance from Erickson Road to the McElwains driveway appears to approximately match up with the distance (0.63 miles) of the sections of Whitney Road that Judge Sullivan found were actively maintained by the Town. That distance, incidentally, is also corroborated by the Brodmerkles statement in their moving brief that the 0.63 mile mark falls around 250 feet short of Lot 2's westerly boundary.
The Google Earth image submitted by the Brodmerkles can, at best, give an approximation of the present conditions of Whitney Road. However, it is impossible, based on the present record, to know how Whitney Road has changed over the years. Thus, the court wishes to clarify that the within determinations are not based upon the Google Earth image itself, but rather upon Judge Sullivans description of the evidence adduced at trial, including the site view. The court takes the Google Earth image as merely confirming that evidence.
[Note 29] This is further supported by the subsequent reference to the area beyond the property of the Maguires (omitting the reference to any property line), which suggests that the Towns maintenance and upkeep activities stopped well short of the westerly edge of Lot 2. And, the Town, even now, in its opposition to the Motion for Clarification, alleges that the 0.63 mile Paved Segment of Whitney Road still matches up with the area that it plows.
[Note 30] In its trial brief and pleadings, the Town did not dispute that it maintained that section of Whitney Road, noting specifically that the Town maintains [the first two segments of Whitney Road] by winter plowing, by oiling and tarring the paved section every three to four years, and by graveling the second [segment] of the road when needed. As to such activities, the Decision states only that [t]he Town regularly maintains and plows this part of Whitney Road.
[Note 31] Specifically, Judge Sullivan found that [i]n the past there have been periods of time during which the [Town] 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 [State Route 119]. At present, the [Town] 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.
[Note 32] The Brodmerkles deed to Lot 1 refers to Whitney Road as a discontinued road. Perhaps Whitney Road might have been a public way at some point in the distant past (prior to the completion of State Route 119), but that there was no definitive proof of that, nor that it was any longer a public way.
[Note 33] Town of Boxborough v. Joatham Spring Realty Tr., 356 Mass. 487 , 490 (1969) (a public way by prescription must be based on evidence of use by the public, adverse and continuous for a period of twenty years or more); Daley v. Town of Swampscott, 11 Mass. App. Ct. 822 , 828 (1981) (it is also necessary for a municipality to establish that its acts of disseisin constitute corporate action because persons of the local community and the general public are too broad a group to acquire [prescriptive rights].).
[Note 34] If the Brodmerkles want to find the location where the definitively private section of Whitney Road begins, they can use the method that has been available to them since the Decision was issued: hiring a surveyor to locate the point in Whitney Road 0.63 miles westerly from the intersection of Whitney Road and Erickson Road.
[Note 35] As noted above, there is no indication that the McElwains were ever apprised of the Brodmerkles Motion for Clarification. Nonetheless, because this Decision and the Amended Judgment to be issued in connection herewith does not go beyond the courts holdings in the original Decision, but rather merely clarifies findings and holdings already made therein, it is not necessary to join the McElwains as parties to this case. However, the court hereby directs the Brodmerkles to serve a copy of this Decision and the Amended Judgment upon the McElwains within ten days of their receipt of same, so as to ensure that the McElwains are apprised of the status of this litigation.
[Note 36] Of course, in the context of that trial, the findings of fact and rulings of law made in the Decision and Judgment would be considered res judicata. Blanchette v. Sch. Comm. of Westwood, 427 Mass. 176 , 179, n. 3 (1998). It would also seem to be relevant that the Town did not timely appeal or file any post-judgment motion following the entry of the Decision with respect to the statement in the Decision that [t]he defendant Town apparently does not contest that [the Paved Segment of Whitney Road], about .63 mile, form[s] a public way.
[Note 37] This paragraph had read as follows: ADJUDGED and ORDERED that the portion of Whitney Road adjacent to land of the [Brodmerkles] shown as Lot 1 on [the ANR Plan] is not a public way, but it is a private way which the [Brodmerkles], as appurtenant to their land, have a right to use for all purposes including the installation of utilities.