A road along the town line dividing Westfield and Southampton was first described at a Westfield town meeting on November 4, 1816. After more than 200 years, only a ghost of that ancient way remainsa treeless depression in the ground, a rise at a brook, or, of relevance here, a shorter gravel way along the properties of the defendants Robert C. Martin, Robert R. and Sheila J. Champagne, Normand F. and Kelly M. Champagne, Joseph R. and Lorraine A. Dionne, David and Darlene L. Sattler, and Raymond A. and Jolanta H. Champagne (the Individual Defendants). Plaintiffs Janine M. Domina, James R. Labrie, and Laurie Ann Nulph, as they are Trustees of the R & L Golden Acres Realty Trust (R & L), seek a determination that this ancient way is not dead, but was established as and remains today a public way that includes the road which passes the Individual Defendants' properties, known as Old Long Pond Road. After trial, I find that Old Long Pond Road is a public way laid out in Westfield along the Westfield-Southampton town line from Route 10 in Westfield to Old Stage Road, has not been discontinued, and includes the way along the Individual Defendants' properties.
Procedural History
R & L filed its Complaint in this action on February 22, 2013. The City of Westfield, together with the Superintendent of Buildings of Westfield, and the Planning Board of Westfield (collectively the City) filed its Answer of Defendants with Affirmative Defenses on March 15, 2013. R & L's Amended Complaint (Complaint or Compl.) was deemed filed on July 10, 2013. The City filed is answer to the amended complaint (City Ans.) on August 5, 2013. The answer of the Individual Defendants was filed on September 9, 2013. On May 18, 2016, a Settlement Agreement between R & L and the City was filed, and the settlement was reported to the court during a telephone conference call on June 21, 2016. The parties' Joint Pre-Trial Memorandum was filed on January 4, 2017, in which R & L stipulated that it waives or has settled all of its claims set forth in the Amended Complaint, with the exception of its Fourth Claim for Relief as against the Individual Defendants only. The pre-trial conference was held on January 19, 2017. R & L filed Plaintiff's Motion in Limine to Exclude Evidence on February 6, 2017. R & L's motion in limine was allowed on March 15, 2017. The Plaintiffs' First Amendment to Joint Pre-Trial Memorandum was filed on September 5, 2017. The Defendants Motion to Strike Plaintiff's Amended Pre-Trial Memorandum or in the Alternative Motion in Limine to Limit Expert Testimony to the Disclosure Provided Prior to June 19, 2017, was filed on September 20, 2017. The Plaintiffs' Opposition to Defendants' Motion to Strike was filed on September 22, 2017. The Defendants' motion to strike was allowed in part on September 25, 2017. The court took a View on October 2, 2017. A Trial was held on October 2 and 3, 2017. The Transcript of the Trial was filed on November 13, 2017. R & L's Post-Trial Memorandum was filed on January 9, 2018. The Defendants' Champagne Post Hearing Brief was filed on January 10, 2018. The court heard closing arguments on January 30, 2018, and took the case under advisement. This Decision follows.
Facts
Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. R & L and the Individual Defendants dispute the existence and location of a road in the City of Westfield (the Disputed Way) which purportedly runs from approximately State Route 10 (Route 10) east along the line between Westfield and the Town of Southampton (the town line), to the point where the town line intersects with Old Stage Road/Pequot Road (Old Stage Road), generally depicted as an "1816 Westfield Town Way" on two unrecorded plans attached here, for reference only, as Exhibits A and B. Exhs. 11 & 12.
2. The Individual Defendants own properties located along a gravel and paved portion of the Disputed Way, situated between Old County Road and Middle Road, as seen generally on the attached Exhibits A and B, and identified on the ground by a street sign, and hereafter referred to, as Old Long Pond Road. Exhs. 3-9, 11-12; View.
3. R & L owns properties located along the western end of Old Long Pond Road and farther west along the Disputed Way as generally depicted on the attached Exhibits A and B. Exhs. 1-2, 11-12; View.
History of the Disputed Way
4. At a town meeting held on April 13, 1791, the Town of Southampton voted to establish what is today known as Old County Road. The record of the relevant portion of the April 13, 1791, meeting reads:
Voted to Establish the road from Westfield Line near Nathan Searl the town being at no expense in purchasing said road according to Phineas Kings survey Which is as follows Viz. Survey of a road from Westfield Line near Nathan Searls to the highway Leading from Moses Searl to Lt. Elijah Claps Land running north 16º East 42 rods on said Nathan Searls Land joining to Sam. Claps then from northeast corner of said Claps Land running on Moses Searls Land East one Degree north 42 rods to the above mentioned Highway.
Exh. 38; View.
5. At a town meeting held on November 4, 1816, the Town of Westfield [Note 1] voted to accept the Disputed Way as a road laid out by the Selectmen (the 1816 Layout) in the area of land now owned by the parties to this action. The record of the relevant portion of the November 4, 1816, town meeting reads:
Voted to accept the following report of the selectmen to wit "Report of the selectmen laying a road on Southampton line beginning at the road leading from Joseph Carriers house to Southampton on the line between Westfield & Southampton running east on said line to Moose Brook / so called / two rods wide & from thence ten rods to a stake & stones six rods wide, & from thence two rods wide to the road that leads from Westfield to Northampton on the line between Westfield & Southampton by Elijah claps
Exh 16.
6. The record of a Westfield town meeting held on March 10, 1817, in relevant part, reads:
Voted, that the Petition of Elijah Clapp and others respecting laying a road be referred to the Selectmen free of expense to the Town.
Exh. 57.
7. The record of a Westfield town meeting held on May 14, 1817, in relevant part, reads:
Voted. To accept the following report of the Selectmen respecting a Road on Hampton plain relating to Elijah Clapp and others. Petition reports as follows, Westfield May 14th, 1817 The Committee appointed to view the Roads embraced by the Petition of Elijah Clapp & others beg leave to report, That they have attended to the business assigned them and are of opinion that the Road leading from Elijah Clapp, by Nathan Searle across to Joseph Ranger, on the Southampton line Should not be discontinued, and they further report that they see no present necessity for laying out a Town Road between the first & second tier of lots across from Joseph Carriers to the Main Road which leads from Westfield to Northampton.
Exh. 58.
8. A docket entry from August 1818, in the records of the Hampden County Circuit Court of Common Pleas relating to a claim by Elijah Clapp reads:
Whereas the petition of Elijah Clapp praying for damages against the Town of Westfield, which, petition was entered in this court at the August term eighteen hundred & seventeen & continued from term to term to this term and now at this term it is ordered by the court that the same be dismissed from the docket.
Exh. 69.
Evidence of the Disputed Way
9. Viewing the topography, I find that a bridge or other crossing existed in the area where the road described in the 1816 Layout would have intersected with Moose Brook. View; Exh. 16; Tr. 2:372-373. Moose Brook is identified in its approximate location on the attached Exhibit A. View.
10. Viewing the topography, including an open path without large trees and a prominent depression or cut in the ground, I find that an old road ran directly east from Moose Brook. View; Exh. 13; Tr. 2:219; 2:372-373.
11. A plan of Westfield, dated November, 1794, labels what are today Old Stage Road and County Road each as a "Road to Northampton." Exh. 42. County Road is identified by name as the next north-south road located to the east of Old Stage Road, as seen on Exhibit 12, page 4.
12. Neither Old County Road nor the Disputed Way appear on a map dated November, 1830, and entitled "Plan of Southampton Hampshire County Massachusetts." Exh. 19.
13. A plan of Westfield, dated 1831, and entitled "Plan of the Town of Westfield," shows a road meeting the description of the Disputed Way running from what is now Route 10 east to what is now Old Stage Road. On the same plan a road corresponding to the current location of Old Stage Road is labeled "Old Northampton Road." Exh. 18.
14. Neither Old County Road nor the Disputed Way appear on a map showing the town line, dated 1857, and entitled "Map of Hampden County Massachusetts." Exh. 77.
15. A road meeting the description of the Disputed Way appears on a map of Westfield, taken from an "Atlas of Hampden Co. Massachusetts" dated 1870, running from what is now Route 10 east to what is now Middle Road. Exh. 17. Also present on the 1870 map is what today is referred to as Old County Road, running north from the town line at a point where it intersects with the above described east-west road. Exh. 17.
16. A map of Hampshire and Hampden Counties, dated 1871, shows the Disputed Way as beginning at what is now Route 10 and running east only as far as what is now Old County Road before turning north. Exh. 78.
17. A map dated 1873, and entitled "County Atlas of Hampshire Massachusetts," shows the Disputed Way beginning at what is now Route 10 and running east only as far as what is now Old County Road before turning north. Exh. 79.
18. A map dated 1894, and entitled "Atlas of Hampden County Massachusetts," shows neither Old County Road nor the Disputed Way. Exh. 80.
19. The Disputed Way does not appear on a map of Westfield contained in "Atlases of Hampden County Massachusetts," dated 1923. Exh. 43.
20. On April 7, 1976, a Decision of the Zoning Board of Appeals of the City of Westfield granted a variance to Armand and Antoinette Champagne. The Zoning Board of Appeals described Old Long Pond Road as "an unimproved road" and voted to "allow the construction of a house on a lot not fronting on a public way but having access over a private right of way located off Middle Road, Westfield." Exh. 69A.
21. Professional Land Surveyor Emily Holmberg (Holmberg) testified, as an expert witness, that in her opinion the road from Westfield to Northampton referred to in the 1816 Layout is the road which today is known as Old Stage Road. Holmberg testified that the foundation for this opinion included her research on the various layouts of Old Stage Road, Old County Road, and other surrounding roads, as well as various atlases which label Old Stage Road as the road from Westfield to Northampton. Tr. 1:158-166. I credit Holmberg's testimony.
22. Holmberg testified that Old Stage Road and Pequot Road are county roads that were laid out by Hampshire County in 1771 and 1779 respectively. Tr. 1:161-162; Exhs. 36-37. I credit Holmberg's testimony.
23. Holmberg testified that, in her opinion, the road from Westfield to Northampton referred to in the 1816 Layout is not Old County Road because Old County Road is a town layout which begins at the town line and runs only to Middle Road rather than from one town to another. Tr. 1:165-166. Holmberg testified that, unlike town roads, county roads will cross town lines within a single county and as Old County Road was laid out within the Town of Southampton, it would not be considered to be a road going from Westfield to Northampton. Tr. 1:163, 2:193. I credit Holmberg's testimony as to the difference between town and county roads.
24. Holmberg testified that at the time of the 1816 Layout Joseph Carrier owned land on both sides of Route 10, formerly Southampton Road, bounded on the north side by the town line. Tr. 2:191-192; Exhs. 62; 65. I credit Holmberg's testimony.
25. Holmberg testified to her research on the deed descriptions of properties that would have been bounded by the Disputed Way. She testified that various deed descriptions referred to the way bounding the properties as a public highway, old highway, pent road, [Note 2] a way, and a private way, and that some descriptions did not mention a way at all. Tr. 2:194-197; Exhs. 62, 65. Expert Edward J. Chapdelaine (Chapdelaine) testified to substantially the same effect. Tr. 2:341. I credit the testimony of Holmberg and Chapdelaine.
26. Holmberg and Chapdelaine each testified that Elijah Clapp owned land situated between Old County Road and Old Stage Road, and further continuing east of Old Stage Road. Tr. 2:211- 212, 238-239, 374-375. Chapdelaine further testified that Elijah Clapp owned land to the west of Old County Road as well. Tr. 2:374-375. I credit the testimony of Holmberg and Chapdelaine that Elijah Clapp owned land from the west side of Old County Road to the east of Old Stage Road.
27. Chapdelaine testified that in his opinion the road from Westfield to Northampton described in the 1816 Layout is what is now Old County Road because it is a road which terminates at Middle Road which runs north towards Northampton. Tr. 2:376-378. Chapdelaine further supported this opinion by stating that where the Disputed Way passes in an easterly direction by land owned in 1816 by Elijah Clapp the first road running north towards Northampton is Old County Road. Tr. 2:384-385.
28. Peter Watson (Watson) of Heritage Surveys testified as an expert in connection with surveying and title work he performed, for R & L, for the purpose of determining the precise location of the town line. Tr. 1:47-50.
29. Watson testified to the method he used to produce a plan which locates the town line in the area of the parties' properties. Tr. 1:50-56. Watson testified that to locate the town line he used GPS to draw a line connecting control points associated with known monuments in four areas along the town line. To do this he used surveying instruments to take the actual measurements of known monuments located at the Montgomery-Southampton-Westfield town corner, on Route 10, and others tied to previous survey work in the area of Old Long Pond Road. He also testified to the difficulty in locating the Holyoke-Southampton-Westfield town corner because a monument marking its location no longer exists. Watson testified that for the purpose of locating the town line between the two town corners he tied his survey into previous survey work from the 1970's and corroborated the purported location of the Holyoke-Southampton-Westfield town corner by identifying a stream crossing on County Road that the Harbor and Land Commission found, in 1914, was 175 feet away from the actual town corner. After locating the town line Watson compared his work with two recorded surveys which also show the town line. See Exhs. 10 & 14. Watson found that his attempt to locate the town line, which he measured to be over 25,000 feet long, was accurate at the town corners within a matter of inches when compared to a 1981 plan of the town line in the area of Middle Road, and found a difference on the order of several hundreds of feet when compared to the location of the town line on a 1976 plan prepared for Armand and Antoinette Champagne. Tr. 1:50-56, 108-109; Exhs. 10, 12, 14, 21; View.
30. Based on his work Watson prepared a plan entitled "Plan of Roadway in Westfield, Massachusetts Surveyed for R & L Golden Acres Realty Trust" dated February 22, 2017 (the Watson Plan), which locates the town line, the parties' properties, paved and gravel roads existing on the ground in the area, the town corners, and moose brook. Tr. 1:50-56, 110; Exh. 12. The Watson Plan is the attached Exhibit B. I credit Watson's testimony and I find that for the purposes of this action the Watson Plan accurately locates Old Long Pond Road, the town line, and the Disputed Way as alleged by R & L.
Discussion
R & L seeks a determination that the road which passes the Individual Defendants' properties, known as Old Long Pond Road, is a portion of the Disputed Way described by the Town in 1816, and further that the Disputed Way was established as, and remains today, a public way. R & L bears the burden of proof on both the location of the ancient way and its status as a public way.
"A 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 ...; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use . . . coupled with . . . acceptance by the public. '(Citations omitted.)" Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715 , 716 (2001), quoting Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 8384 (1979); see G.L. c. 82. Under the facts I have found, the Disputed Way is a public way only if it was laid out as such by the Town. "Once duly laid out, a public way continues to be such until legally discontinued
Little reason exists for courts to assume that public officials have given up a highway easement in a fit of absence of mind. If discontinuance is what a public body wants, it may act." Carmel v. Baillargeon, 21 Mass. App. Ct. 426 , 428-429 (1986) (internal citations omitted). "Non-use or apparent abandonment of a public way by a town does not result in a discontinuance of the public status of the way." Martin v. Building Inspector of Freetown, 38 Mass. App. Ct. 509 , 511 (1995); see Boy Scouts of America, Cape Cod & Islands Council, Inc. v. Yarmouth, 32 Mass. App. Ct. 713 , 718 (1992). There was no evidence of the discontinuance of the Disputed Way. If it was laid out as a public way in 1816, it retains that status today.
Status as a Public Way
The record of the town meeting held on November 4, 1816, reports that the Selectmen of the Town laid out a road in the area of the properties currently owned by the parties to this action. The road described by the Selectmen's report was either a public way or a statutory private way, depending on the purpose for which it was laid out. 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 it 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").
The applicable statute in effect in 1816 read:
Be it enacted
that the Selectmen of the several Towns in this Government, are hereby authorized and empowered
to lay out within their respective Towns, particular and private ways, for the use of such Town only; or for the use of one or more individuals thereof, or proprietors therein; and if any particular Person or Persons, who are Owners of the land through which such private Roads shall be laid out, be injured thereby, he or they shall receive such recompense, as the party interested and the Selectmen shall agree upon, to be paid by the Town, or individual Person or Persons, for whose use the road is laid out
Provided always, that no private way laid out by the Selectmen, or their order, as aforesaid, shall be established as such, until the same has been reported to the Town, at some public meeting of the Inhabitants thereof, regularly notified and warmed, and by them approved and allowed.
G.L. c. 82, §§ 21-24, as amended through St. 1786, c. 67, § 1 (1786 Act).
Roads created under the 1786 Act fall into two categories: public or town ways, and statutory private ways, both having been collectively referred to in the statute as "particular and private ways." Id. Notwithstanding this statutory language, both are in their "nature public, which any one having occasion may use and enjoy until it is lawfully discontinued." Flagg v. Flagg, 16 Gray 175 , 180 (1860); see Opinion of the Justices, 313 Mass. 779 , 782 (1943) ("Although the words 'private ways' may occasionally be used in the statutes with a different meaning, they commonly mean ways of a special type laid out by public authority for the use of the public. Such 'private ways' are private only in name, but are in all other respects public." (internal citations and quotations omitted)); Davis v. Smith, 130 Mass. 113 , 114 (1880) ("Town ways and private ways laid out under the provisions of our statutes are public ways."); Denham v. Bristol County Com'rs, 108 Mass. 202 , 204-205 (1871) ("All the different ways, which towns are authorized by law to lay out, are in truth public highways, for the public without discrimination has the right to use them. It is wholly immaterial by what name they are called."). These "particular and private ways" are those that are laid out by the selectmen completely within the town's boundaries. They are distinguished from a "highway or public road, which was not confined within the boundaries or territory of a town, but extended from town to town or place to place, and which could be laid out only by the court of sessions." Flagg, 16 Gray at 179.
The distinction under the 1786 Act between town ways and statutory private ways turns on the purpose for which such roads were laid out by the town. What today would be referred to as town or public ways, those that are open to the public and maintained by the town, are those which were "for the use of such Town only." 1786 Act. Those roads laid out "for the use of one or more individuals thereof, or proprietors therein," id., are referred to today as statutory private ways, which are open to public use but whose construction and subsequent maintenance are not necessarily the obligation of the town. Butchers' Slaughtering & Melting Ass'n v. City of Boston, 139 Mass. 290 , 292 (1885) ("The 'private way' known to modern statutes differs from a 'town way' only in the fact that the selectmen may assess the whole or a portion of the damages of laying out, altering, or discontinuing such a way upon the individuals for whose use it is laid out or altered, or by whose application it is discontinued. In other respects it is a part of the system of town ways."); see United States v. 125.07 Acres of Land, More or Less, 707 F.2d at 14 ("certain particular and private ways necessary for access to 'the lands of particular persons or proprietors'
were also laid out by the town, but they might be paid for by either the town or the inhabitants or proprietors who desire and reap the benefit of the same. Such a road is public in the sense of providing access, but its latter day descendant is the 'statutory private way,' a kind of road for which neither town, county, nor Commonwealth bears upkeep responsibility." (internal quotations and citations omitted)).
The Disputed Way described by the 1816 Layout is just such a private and particular way which today would be public in character and open to public use. What remains to be determined is whether the way in question was laid out for the benefit of all persons in the Town, and therefore would today be a public way, or rather was for the benefit of only a few individuals and is a statutory private way. As the way has not been discontinued, the effects of this final determination are limited to narrow distinctions under the Subdivision Control Law. See Casagrande v. Town Clerk of Harvard, 377 Mass. 703 , 709 (1979) ("Since we find that a statutory private way is not as a matter of law a 'public way' under the subdivision control law, a development on a statutory private way requires planning board approval under G.L. c. 41, s 81L, par. 12, cl. (A), unless it is both maintained and used as a public way."); Moncy, 50 Mass. App. Ct. at 720 ("The judge, therefore, properly could conclude as a matter of law that the 1725 Layout of Bates Lane constituted a private way, now known as a statutory private way. [] As such, it would not as a matter of law qualify as a 'public way' under the Subdivision Control Law.").
The record of the November 1816 Westfield town meeting describes the Disputed Way as being laid out by the Selectmen. After considering the evidence, I find that the Selectmen laid out the Disputed Way for the benefit of all the persons in the Town, rather than for the benefit of individuals, therefore making the Disputed Way a public way. A look at the various maps of the period show that in the late 18th century and early 19th century, the Selectmen laid out a series of ways running east-west between the two north-south county roads, State Route 10 (Old College Highway) and Old Stage Road. See Exhs. 17-18, 43, 63. These east-west roads were intended, I find, to connect the Town's two main north-south arteries at that time, creating a cohesive network of public roads within the Town. These east-west roads, including the Disputed Way, therefore would have been intended for public use by all persons traveling in the Town.
Furthermore, the evidence supports the inference that the Selectmen did not lay out the Disputed Way for the benefit of private individuals. Conspicuously absent from the record is any reference to abutting landowners who would have an interest in the circumstances of the Disputed Way's creation. The 1817 records show that Elijah Clapp, among others, was a party to a petition to discontinue the Disputed Way and replace it with a new road in a different location. In the context of the statutory framework for the laying out of town roads, this is the kind of petition used to request the Town to create a statutory private way. The Town's records suggest, and I find, that the Disputed Way was laid out as a public way in 1816, and shortly thereafter Elijah Clapp petitioned the Town to have the Disputed Way discontinued and replaced with a statutory private way in a different location. Further supporting this conclusion is Elijah Clapp's claim against the Town for damages in the county court. The records, limited though they are, strongly suggest that after Clapp's petition to have the Disputed Way discontinued was denied by the Town, he filed a claim against the Town for damages relating to the laying out of the Disputed Way through his property.
The Individual Defendants argue that a 1976 variance decision which referred to Old Long Pond Road as a private right of way is binding on R & L as to the status of the Disputed Way. This argument fails as the Zoning Board of Appeals is without the authority to legally discontinue a public way. Such authority, "to lay out, relocate, or alter town ways," is given to the "selectmen or road commissioners of a town or city council of a city." G.L. c. 82, § 21.
Based on the evidence presented relating to the circumstances of the 1816 Layout, I find that the Disputed Way laid out by the Selectmen would today be a public way. The Disputed Way was laid out as a public way in 1816, and with no evidence of its discontinuance, irrespective of its non-use and lack of maintenance, it remains a public way today. Martin, 38 Mass. App. Ct. at 511.
Location of the Disputed Way
Having established that the Disputed Way described by the 1816 Layout was and remains today a public way, I finally address the particular location of that way. The parties do not dispute the location of the Disputed Way west of its intersection with Old County Road. The question before the court is whether the Disputed Way laid out in 1816 ran east only as far as Old County Road, or whether it continued further east to that point where the town line intersects with Old Stage Road. On the evidence presented to the court I find that the Disputed Way laid out in 1816 ran easterly from approximately Route 10 all the way to Old Stage Road and Pequot Road and that Old Long Pond Road as it exists now is all that remains of the easternmost portion of the Disputed Way.
Holmberg testified that, in her opinion, the road from Westfield to Northampton called out in the 1816 Layout as the eastern terminus of the Disputed Way is what is now Old Stage Road. Chapdelaine testified that in his opinion this road to Northampton is what is now Old County Road. I credit Holmberg's other testimony that town roads are laid out within town boundaries and that county roads cross town boundaries, which is consistent with the understanding of the SJC in Flagg discussed supra. Flagg, 16 Gray at 179 ("The term 'private or particular way' is there used, not to designate or define the use or purpose for which it was laid out, or the nature or extent of the easement which it created, but in contradistinction to a highway or public road, which was not confined within the boundaries or territory of a town, but extended from town to town or place to place, and which could be laid out only by the court of sessions.").
Old County Road was laid out in 1791 as a town way, located entirely within the Town of Southampton. Due to its location and the nature of its creation, it is unlikely to be a road described as a road connecting two towns. In contrast, Old Stage Road is a county road which crosses town boundaries. Further, historical maps, while not determinative as to the presence of the Disputed Way, refer to Old Stage Road and the further east County Road as "Road to Northampton." It seems unlikely that the road to Northampton described in the 1816 Layout was a road located only in Southampton that is defined in its layout as running only from the Westfield line. Moreover, it would be illogical to conclude that in 1816 the road from Westfield to Northampton was a way only accessible to citizens of Westfield by traversing the very road being established in the 1816 Layout. Considering all of the evidence, I am convinced that the easterly bound of the Disputed Way is a road, existing in Westfield in 1816, located at least as far east as Old Stage Road. The Disputed Way is, therefore, a public way, running east from Route 10, along the town line, to Old Stage Road. For the purposes of this action I credit the location of the town line and the Disputed Way as seen on the Watson Plan.
Old Long Pond Road, being that easterly portion of the Disputed Way which the Individual Defendants contend is a private way, is an existing public way which was laid out by the Town and has not been discontinued. The Individual Defendants' testimony and admitted exhibits regarding their use of Old Long Pond Road as a private way cannot overcome the finding that the Disputed Way, including Old Long Pond Road, is a public way in the City of Westfield that has not been lawfully discontinued.
Conclusion
For the reasons set forth above, judgment shall enter declaring that the Disputed Way is an existing public way in the City of Westfield, which has not been discontinued, and is located along the town line as shown on the Watson Plan.
Judgment Accordingly.
JANINE M. DOMINA, JAMES R. LABRIE, and LAURIE ANN NULPH, as they are Trustees of the R & L GOLDEN ACRES REALTY TRUST, v. CITY OF WESTFIELD, SUPERINTENDENT OF BUILDINGS OF WESTFIELD, and PLANNING BOARD OF WESTFIELD consisting of the following individuals who are named herein solely in their official capacity: Randy Racine, Christopher Wilkie, Peter Fiordalice, Jane Magarian, Phillip McEwan, William Onyski, Ramon Rivera, Raymond St. Hilaire, and Matthew VanHeynigen; and ROBERT C. MARTIN, ROBERT R. CHAMPAGNE & SHEILA J. CHAMPAGNE, NORMAND F. CHAMPAGNE & KELLY M. CHAMPAGNE, JOSEPH R. DIONNE & LORRAINE A. DIONNE, DAVID SATTLER & DARLENE L. SATTLER, and RAYMOND A. CHAMPAGNE & JOLANTA H. CHAMPAGNE.
