LEE MIGUEL v. TOWN OF FAIRHAVEN, MARC D. SEGUIN, MARIA LUZ C. SYLVIA, ANTHONY SIMMONS, JR. and HUGETTE A. WHITE.

Whether a way is private, or has been accepted by a city or town as public, is not a novel question in the Commonwealth. The underlying controversy in this matter concerns the status of a roadway in Fairhaven known as North Street. Plaintiff Lee Miguel (Miguel) seeks a declaratory judgment that a portion of North Street, west of Cherry Street, is a private way for his use and other with property abutting said street, but not for the public at large. Defendant Town of Fairhaven (Town) denies that this section of North Street is a private way and asserts that it is public, pursuant to a plan designating it as "Public" filed in connection with a registration petition for Miguel's property by his predecessor in interest. The parties have each moved for summary judgment. As discussed more fully below, the Town has failed to satisfy its burden of demonstrating that the portion of North Street west of Cherry Street is a public way, and as such, it is private.

Procedural History

On June 1, 2016, the Plaintiff filed the Complaint in Superior Court. On July 8, 2016, the case was transferred to the Land Court pursuant to G.L. c. 211B, § 9. On August 3, 2016, the Town of Fairhaven filed its Answer. A Joint Motion to Amend Complaint was filed on October 18, 2016. The court allowed the Joint Motion to Amend Complaint and the Amended Complaint (Compl.) was filed on October 19, 2016. On November 25, 2016, Plaintiff filed a Request for Default pursuant to Mass. R. Civ. P. 55(a) on Defendants Marc D. Seguin, Maria Luz C. Sylvia, Anthony Simmons, Jr., and Hugette A. White and the defaults of those Defendants entered. On March 6, 2017, the Town of Fairhaven filed Assented-to Motion to Amend Defendant's Answer to Complaint and its Amended Answer. On March 7, 2017, the court allowed the Assented-to Motion to Amend Defendant's Answer to Complaint.

Plaintiff's Motion for Summary Judgment, Plaintiff's Statement of Undisputed Facts (Pl. SOF), Affidavit of Lee Miguel (Miguel Aff.) Defendant's Responses to Plaintiff's Statement of Facts (Def. SOF) Plaintiff's Responses to Defendant's Statement of Facts (Resp. SOF), Plaintiff's Response to Defendant's Town of Fairhaven, Statement of Facts, and Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment were filed on May 15, 2017. On May 25, 2017, the Town of Fairhaven filed its Cross-Motion for Summary Judgment and Memorandum of Law in Support of its Cross-Motion for Summary Judgment. On June 12, 2017, Plaintiff Lee Miguel's Opposition to Defendant Town of Fairhaven's Cross Motion for Summary Judgment and Plaintiff's Memorandum of Law in Support of Opposition to Defendant Town of Fairhaven's Cross Motion for Summary Judgment were filed. A hearing on the cross-motions for summary judgment was held on June 16, 2017, and the court took the motions under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

Based on the pleadings and the documents submitted with the cross-motions for summary judgment, the following facts are undisputed or deemed admitted:

1. Miguel and his wife reside at 3 North Street in Fairhaven. Pl. SOF ¶ 1; Def. SOF ¶ 1.

2. The Town is a duly incorporated town in Bristol County, Massachusetts. Pl. SOF ¶ 2; Def. SOF ¶ 2.

3. In 1957, Miguel's predecessor in interest, George H. Taber (Taber), filed a petition in the Land Court to register and confirm title to six noncontiguous parcels of land, divided into various lots (Taber Petition). The Taber Petition stated:

I claim to own in fee-simple the land within the limits of the highways or public ways to the middle line thereof upon which the said land described is bounded, subject to the right of the public to use the same as such; North Street, Adams Street, Long Road, Cherry Street, Oak Grove Lane and I desire to have the lines of said ways determined.

Def. SOF ¶ 16, Exh. B.; Resp. SOF ¶ 16.

4. Along with the Taber Petition, Taber filed a plan of land with the Land Registration Office on July 9, 1957, entitled "Plan of Land in Fairhaven, William F. Kirby, Surveyor," dated March 30, 1957, later referred to as Land Court Plan 27706A (Registration Plan). Pl. SOF ¶ 3; Def. SOF ¶ 3, Exh. C.

5. On March 7, 1958, the Land Court issued a Judgment and Decree on the Taber Petition (Land Court Judgment). The Land Court Judgment stated: "All of said boundaries except the water line are determined by the Court to be located as shown on plans drawn by William F. Kirby Surveyor, dated March 30, 1957, as modified and approved by the Court, filed in the Land Registration Office." Def. SOF ¶ 21, Exh. D; Resp. SOF ¶ 21.

6. Miguel and his wife are the owners of two parcels of the registered land included in the Taber Petition located on North Street, shown on the Registration Plan as Lots 44 and 45, attached here as Exhibit A. Lot 44 is described in the Taber Petition as Parcel 4, and Lot 45 is described in the Taber Petition as Parcel 5. Miguel and his wife have their residence on Lot 45, while Lot 44 remains vacant. Pl. SOF ¶¶ 1, 3-5; Def. SOF ¶¶ 1, 3-5, 17; Resp. SOF ¶ 17; Compl., Exh. 1.

7. The Registration Plan depicts North Street west of Cherry Street as "Public-33.00 Wide." The Registration Plan shows the street running between Lots 44 and 45, from the shoreline of Acushnet River on the west and continuing past Cherry Street on the east. Def. SOF ¶ 18, Exh. C; Resp. SOF ¶ 18.

8. Lot 44 is bounded on the west by the shoreline of the Acushnet River and is bounded on the south by North Street. Def. SOF ¶ 19, Exh. C; Resp. SOF ¶ 19.

9. Lot 45 is bounded on its northern edge by North Street, and is bounded on the west by property of Defendant Anthony Simmons, which abuts the land of Defendant Hugette A. White. Def SOF ¶ 20; Resp. SOF ¶ 20.

10. On or about December 2003, Miguel's predecessor in interest in Lots 44 and 45, Albert A. Thibeault (Thibeault), requested a Definitive Subdivision approval from the Fairhaven Planning Board (Board), pursuant to G.L. c. 41, § 81T, to extend and construct North Street 125 feet west of Cherry Street in order to provide access to Lot 45 so a residence could be built. Pl. SOF ¶ 6, Exh. 1; Def. SOF ¶ 6; Miguel Aff. ¶ 4.

11. On or about January 30, 2004, the Board approved the application of Thibeault to extend and construct North Street west of Cherry Street. Pl. SOF ¶ 8, Exh. 1; Def. SOF ¶ 8; Miguel Aff. ¶ 5.

12. The Board's approval of the extension and construction of North Street west of Cherry Street was conditioned upon this portion of North Street remaining private, with all maintenance thereof, snow plowing and associated costs remaining the responsibility of the owners of Lots 44 and 45. Pl. SOF ¶ 9, Exh. 1; Def. SOF ¶ 9.

13. North Street west of Cherry Street is now a dead end street, terminating at the shoreline of the Acushnet River, which constitutes New Bedford Harbor. Pl. SOF ¶ 7; Def. SOF ¶ 7; Miguel Aff. ¶ 3.

14. Lot 44 and Lot 45 both have frontage on the extended portion of North Street, west of Cherry Street. Pl. SOF ¶ 10; Def. SOF ¶ 10.

15. The Town, based on a claim that the portion of North Street west of Cherry Street is a public way, has issued parking citations to Miguel for parking on that extended portion of North Street. Pl. SOF ¶ 11; Def. SOF ¶ 11.

16. The records of the Town Clerk's office show no acceptance of the extended portion of North Street west of Cherry Street as a public way. Pl. SOF ¶ 12, Exh. 2; Def SOF ¶ 12.

17. The portion of North Street west of Cherry Street was not laid out in accordance with G.L. c. 82, §§ 1-32. Pl. SOF ¶ 13; Def. SOF ¶ 13.

18. There is no record of any dedication to a public use of the portion of North Street west of Cherry Street by any owner thereof. Pl. SOF ¶ 14; Def. SOF ¶ 14.

19. Miguel has maintained and plowed the extended portion of North Street. Pl. SOF ¶ 15; Miguel Aff. ¶ 6.

20. The Town monitors and clears brush in the drainage ditch to prevent flooding. Def. SOF ¶ 15.

Discussion

The only issue is whether the North Street extension west of Cherry Street is a private or public way. "When the fact of a public way is alleged by one party and disputed by the adversary the burden of proof ultimately falls on the party asserting the fact." Commonwealth v. Hayden, 354 Mass. 727 , 728 (1968); see also Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715 , 716 (2001); Rivers v. Town of Warwick, 37 Mass. App. Ct. 593 , 594 (1994); Schulze v. Town of Huntington, 24 Mass. App. Ct. 416 , 417 (1987); Witteveld v. City of Haverhill, 12 Mass. App. Ct. 876 , 877 (1981). In the instant action, the Town alleges the fact that the North Street extension is a public way and has filed the cross-motion for summary judgment. Consequently, the Town bears the burden of proof as to the claim that the North Street extension is public. "A private way is not public unless it has become such in one of three ways: '(1) a laying out by public authority in the manner prescribed by statute (see G.L. c. 82, §§ 1-32); (2) 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.'" Moncy, 50 Mass. App. Ct. at 716, quoting Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). Because the burden is on the Town, in considering this motion for summary judgment, the court will draw inferences in the Town's favor. As discussed below, even with inferences drawn in its favor, the Town cannot establish that the North Street extension is a public way.

1. Layout pursuant to G.L. c. 82, §§ 1-32

The provisions of G.L. c. 82 govern the method by which ways in cities and towns are made public by layout. A petition for a layout of a public road is first presented to the county commissioners. Notice must be given to the clerks of each of the cities and towns in which a way is located, as well as to the owners of land to be taken, and published in a newspaper. G.L. c. 82, § 3. If, after a public hearing, the county commissioners are satisfied that the common convenience and necessity requires the laying out of a public way, they may within 12 months proceed with the road project. G.L. c. 82, §§ 4, 5. At the time the laying out of the public way is voted, the county commissioners make a taking of the land. G.L. c. 82, § 7. The laying out of a street under G.L. c. 82 is limited to situations where the county commissioners clearly intended to construct a public road. G.L. c. 82, § 1; see Moncy, 50 Mass. App. Ct. at 716, citing United States v. 125.07 Acres of Land, More or Less, 707 F.2d 11, 14 (1st Cir. 1983) ("The ancient [Massachusetts] statutes make clear that whether a road is public or private for upkeep purposes depends, not just upon whether it was laid out, but upon why it was laid out.").

For a road in a city or town to be established as a public way by laying out according to law, there must be a record of an adjudication by the town council or alderman. G.L. c. 82, §§ 1-13. Anyone seeking to demonstrate that the public way was laid out should produce certified copies of both the appropriate town meeting warrant and the minutes or results showing what action was taken on the warrant article. A clerk's certificate is prima facie evidence that a way is public, but is not conclusive. G.L. c. 233, § 79F. Here, there is no evidence of laying out that has been produced by the Town. The Town concedes that there is no evidence in any Town records of a laying out of the North Street extension that conforms to the requirements of the statute. The Town did not meet its burden in proving that North Street was laid out according to G.L. c. 82.

2. Prescription

The Town also bears the burden to prove that the North Street extension is a public way by prescription. In order for this court to determine that the section of North Street west of Cherry Street has become public by prescription, the Town would have to produce evidence of adverse use by the public for a 20 year period. Fenn, 7 Mass. App. Ct. at 84. "It is well settled that the creation of a public way by adverse use depends on a showing of 'actual public use, general, uninterrupted, continued for [the prescriptive period].'" Id., quoting Jennings v. Inhabitants of Tisbury, 5 Gray 73 , 74 (1855); see Sprow v. Boston & Albany R.R. Co., 163 Mass. 330 , 339 (1895) ("Adverse use means a use under a claim of right, as distinguished from a use which was permitted."). The Town has not addressed the issue of whether the portion of North Street west of Cherry Street is public by prescriptive use. There is no specific evidence in the record of public use of the North Street extension. Because the Town has made no claim that the North Street extension became a public way by adverse use, the Town has not met its burden of proof that the way is public by prescription.

3. Dedication and acceptance prior to 1846

Creation of a public way by dedication "required an intent on the part of the landowner manifested by unequivocal declarations or acts to appropriate his land to a public use, and acceptance by the public authorities either expressly or by implication." Loriol v. Keene, 343 Mass. 358 , 360 (1961), citing Hemphill v. City of Boston, 8 Cush. 195 , 196 (1851). The Town does not allege in its cross-motion that the North Street extension is a public way created prior to 1846. The summary judgment record is devoid of any evidence that the owner or owners of the fee prior to 1846 ever dedicated the land that constitutes the North Street extension as a public way. The Town has failed to meet its burden of proof that the North Street extension is a public way by dedication and acceptance prior to 1846.

4. Registration Plan

The Town solely relies on the depiction of North Street west of Cherry Street as "Public" in the Registration Plan as conclusive that this portion of North Street is public. The Town argues that because North Street is shown as a public way on the Registration Plan that was part of the Land Court Judgment, Miguel, as Taber's successor in interest, is precluded or estopped from asserting that it is a private way in this action. See Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 387-388 (1992) (party having due notice of proceedings for land registration and having failed to object to them, is bound, as are his successors, by the Land Court decree which is conclusive); Otis v. Arbella Mut. Ins. Co., 443 Mass. 634 , 639-640 (2005), quoting Blanchette v. School Comm. of Westwood, 427 Mass. 176 , 184 (1998) (judicial estoppel "precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding").

The Taber Petition raised the question of ownership of Lots 44 and 45 and the Land Court Judgment determined that Taber owned the property, in addition to other parcels of land, in fee. While the Registration Plan, filed by Taber, referred to the section of North Street west of Cherry Street as "Public," the Land Court Judgment never defined the status of North Street. There is no evidence in the summary judgment record that the issue of whether Lots 44 and 45 abutted a private or public way was ever dealt with in the registration proceedings resulting in the Land Court Judgment. This is consistent with the general purpose of land registration, which is "to provide a means by which title to land may be readily and reliably ascertained," not to provide a means to determine whether ways are public or private. State Street Bank & Trust Co. v. Beale, 353 Mass. 103 , 107 (1967), citing Malaguti v. Rosen, 262 Mass. 555 , 567-568 (1928); G.L. c. 185, § 1. The Land Court Judgment did not determine whether the North Street extension was a public way and does not bar the court from determining its status in this case.

That the section of North Street west of Cherry Street is shown as "Public" on the Registration Plan is not determinative of the status of the way. Courts have held that plans or deeds referring to a way as "public" or a "town road", prior approval not required (ANR) plan endorsements, building permits issued by a planning board, or the beliefs of public officials, in and of themselves, do not constitute legally binding precedent that the way is public. See Goldman v. Planning Bd. of Burlington, 347 Mass. 320 , 324-325 (1964); Moncy, 50 Mass. App. Ct. at 720; Rivers, 37 Mass. App. Ct. at 595-596; W. D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 20 (1979). While it could be inferred that Taber, or the surveyor who developed the Registration Plan, may have been under the mistaken impression that the portion of North Street west of Cherry Street was a public road, and that this mistake that was not looked into further or corrected by the Land Court since it was not the subject of the registration proceedings, such an inference is not necessary. The Land Court did not adjudicate in the registration proceeding that the North Street extension is a public way, and the designation on the Registration Plan, without more, is not evidence that it is.

In fact, the evidence of the use of the way following the Land Court Judgment indicates that the way retained its private status. Thibeault requested a Definitive Subdivision approval from the Board, pursuant to G.L. c. 41, § 81T, for the North Street extension. However, the Subdivision Control Law specifically exempts from the definition of "subdivision" the splitting of a parcel of property where each divided lot has adequate frontage under the bylaw and is located on a public way. G.L. 41, § 81L. If Thibeault, having adequate frontage, believed that North Street was a public way, he would have filed an ANR plan, pursuant to G.L. 41, § 81P, rather than a Definitive Subdivision Plan. Further, the Board's approval of the extension and construction of North Street west of Cherry Street was conditioned upon this portion of North Street remaining private, with all maintenance thereof, snow plowing and associated costs remaining the responsibility of the owners of Lots 44 and 45. Consistent with the Board's condition, Miguel has maintained and plowed this portion of North Street. The Town has presented no evidence that it ever maintained or repaired this section of the street, only that it monitors and clears brush in the drainage ditch to prevent flooding.

The burden of establishing a public way has grown greater over the years. Compare Reed v. Mayo, 220 Mass. 565 (1915), and Clark v. Hull, 184 Mass. 164 (1903), with Loriol, 343 Mass. at 360-363, and Fenn, 7 Mass. App. Ct. at 83-87. Courts make a searching inquiry and require a sufficient quantum of proof to impute public-way status to streets, in order to avoid the consequences attendant to a way being public, such as liability for failure to maintain, the expense of maintenance and snow removal and divisibility of land by ANR plans. See Moncy, 50 Mass. App. Ct. at 720; Schulze, 24 Mass. App. Ct. at 418-419. A finding that the North Street extension was a public way based on its designation as "Public" on the Registration Plan would be contrary to established law declaring the particular methods by which ways can become public. "[It] would have the practical effect of permitting municipal officials to establish public ways by acts other than those specified . . . a result not in accord with public policy." Fenn, 7 Mass. App. Ct. at 86. Even drawing inferences in the Town's favor, the evidence is insufficient to support a finding that the North Street extension is a public way.

CONCLUSION

For the foregoing reasons, Miguel's Motion for Summary Judgment is ALLOWED and the Town of Fairhaven's Motion for Summary Judgment is DENIED. Judgment shall enter declaring that the portion of North Street west of Cherry Street is not a public way.

SO ORDERED.

exhibit 1