GERALD L. BRODMERKLE and MADELINE BRODMERKLE vs. TOWN OF ASHBY, THOMAS MAGUIRE, and NANCY MAGUIRE

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 court’s 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 court’s 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 court’s] 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 O’Malley v. O’Malley, 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 Sullivan’s 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 court’s 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 court’s 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 Sullivan’s 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 Sullivan’s 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 Ass’n, 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 Sullivan’s 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 Sullivan’s 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 Sullivan’s 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 Town’s 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 public’s 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 Town’s 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 Town’s answer, which clearly does contest that proposition.

It is unclear why Judge Sullivan made this statement in the Decision, as the Town’s pleadings clearly state that the Town did dispute this issue -- as they continue to do to this day. While the Town’s 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.

Conclusion

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 court’s review of the Decision and the court’s 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 Town’s 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.