Home EDWARD O. HANDY, III, SUSAN S.H. LITTLEFIELD, JOHN E. HANDY, and SETH H. HANDY v. ESTATE OF KRYSTYNA DUBOIS, through its Personal Representatives, STEFAN AND ANNA MISKA; CRAIG AND LYNNE MUDIE; ANDREW VOIKOS; RALPH AND VIRGINIA CAHOON; AGNES M. SORENSON TRUST, through its Trustee, RICHARD SORENSON, JR.; JOHN AND DOROTHY O'CONNELL; PETER AND JESSICA BURKE; GOONEY BIRD REVOCABLE TRUST, through ADAM G. LAMBERT and SUZANNE LAMBERT, Co-Trustees; FRANCIS AND KAREN SAYERS; KATHLEEN O'BRIEN; ROBERT AND SUE BRITNELL; JEFFERY AND JOANNE HASTINGS; JOHN AND SALLY ORCUTT; DAVID AND ANGELA ABATE; RONALD AND SIMONE PERRIER; SULLIVAN REAL ESTATE TRUST, through its Trustee, DONALD MCCLURE.

MISC 14-488543

August 21, 2019

Barnstable, ss.

ROBERTS, J.

MEMORANDUM OF DECISION

INTRODUCTION

Plaintiffs Edward O. Handy, III, Susan S.H. Littlefield, John E. Handy and Seth H. Handy ("the Plaintiffs"), the owners of two unimproved and otherwise landlocked parcels of land in Barnstable, Massachusetts ("the Premises"), brought this action to establish a right of access over Flint Rock Road and Boulder Road ("the Subject Roads") for the benefit of the Premises. All defendants except Craig Mudie, Lynne Mudie, Francis Sayers, Karen Sayers and Kathleen O'Brien ("the Remaining Defendants") were defaulted on March 11, 2016. For the reasons set forth below, this court concludes that the Plaintiffs established at trial that the Subject Roads are private ways open to public use. That public use, however, is terminable at will by the owners of the fee in the Subject Roads and does not include the right, among other things, to install utilities.

RELEVANT PROCEDURAL HISTORY

The Plaintiffs commenced this action with the filing of a complaint on December 3, 2014, which was subsequently amended on March 2, 2015 and again on July 6, 2015 ("the Second Amended Complaint"). In the Second Amended Complaint, Plaintiffs asserted two counts: Count I, claiming a private easement by prescription to reach the Premises; and Count II, claiming a public easement by prescription to reach the Premises. By letter docketed on May 12, 2016, counsel for the plaintiffs, Seth H. Handy, Esq., confirmed that Plaintiffs' claim in Count II was for public rights of travel in the subject private ways, not that those ways had become "public ways" by prescription.

Plaintiffs filed a motion for summary judgment on July 27, 2016 to which the Remaining Defendants filed an opposition on August 29, 2016. A hearing on that motion was held on November 16, 2016. This court (Cutler, C.J.) issued a memorandum of decision on June 22, 2018 denying the Plaintiffs' motion on the grounds that Plaintiffs had failed to prove that Flint Rock Road was an ancient public, as opposed to ancient private, way over which the Plaintiffs had a right of use as members of the public; and that Plaintiffs' proof that the Remaining Defendants' deeded rights to use the Subject Roads were not exclusive rights did not establish that the Plaintiffs had rights over those roads. In addition, Plaintiffs' alternative claim of a public right of travel over the Subject Roads either arising from the Town of Barnstable's maintenance of those roads or from a "public prescriptive easement" arising through general public use also failed: Plaintiffs did not offer legal support for the theory that a municipality's maintenance activities on private ways created public rights of travel and also did not establish "clear proof" of use by the general public sufficient to establish a prescriptive right.

On March 14, 2019 this matter was reassigned to the undersigned. At a status conference held on April 2, 2019, Plaintiffs' counsel confirmed that the principal issue for trial was whether there were public rights of travel over private ways that benefited the Plaintiffs, and that the trial would not address whether the Plaintiffs had private prescriptive rights over the Subject Roads or whether the general public had rights that would make the Subject Roads public ways, thereby necessitating the joinder of the Town of Barnstable ("the Town"). Trial was scheduled for May 3, 2019, and a view of the Premises and the Subject Roads was held on April 29, 2019.

After one continuance, the trial was held on the morning of August 7, 2019. The Plaintiffs called plaintiff Susan S.H. Littlefield ("Ms. Littlefield") and Theodore A. Schilling, Esq. ("Mr. Schilling") as witnesses and the Remaining Defendants called Mr. George Blanchard ("Mr. Blanchard"). The parties agreed to the admission of 12 exhibits, and an additional six exhibits were admitted during the course of trial.

FINDINGS OF FACT

Based on the pleadings, the view, the admitted exhibits, the testimony at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I find the following facts, reserving certain details for the discussion of specific legal issues. To the extent any witness testified otherwise, I do not find that testimony credible, reliable, or in accord with the weight of the other testimony and exhibits in the case and the inferences I drew from the totality of that evidence.

The Parties

1. The Plaintiffs are the owners of Parcel 1 and Parcel 2 (hereinafter, "the Premises," or "Parcel 1" and "Parcel 2" respectively) as shown on a plan entitled "Plan Of Land In Barnstable, MA Boulder Road Prepared For John & Susan Littlefield Date: April 22, 2019" ("the 2019 Plan"). Ex. 1; Testimony of Ms. Littlefield.

2. Defendants Craig and Lynne Mudie reside at and own the property located at 8 Marble Road, Barnstable, MA. Second Amended Complaint ¶ 7 and the Remaining Defendants' answers thereto ("Answers").

3. Defendants Francis and Karen Sayers reside at and own the property located at 78 Flint Rock Road, Barnstable, MA. Second Amended Complaint ¶ 14 and Answers.

4. Defendant Kathleen O'Brien resides at and owns the property located at 68 Flint Rock Road, Barnstable, MA. Second Amended Complaint ¶ 15 and Answers.

The Premises

5. Parcel 1 of the Premises is also shown on a plan entitled "Plan of Land in Barnstable, Mass. For Edward E. Kelley et al September 6, 1973 Scale 1"=100' Edward E. Kelley Reg. Land Surveyor Cummaquid, Mass." and recorded in the Barnstable County Registry of Deeds ("the Registry") at Plan Book 280, Page 64 ("the 1973 Kelley Plan"), and the lot is described on that plan as being in the ownership of "John L. and Edward O. Handy." Ex. 2.

6. The westerly boundary of Parcel 2 is also shown on the 1973 Kelley Plan, and the lot is described as being in the ownership of "John L. and Edward O. Handy."

7. The easterly boundary of Parcel 2 is shown on a plan entitled "Plan of Land in Barnstable, Mass. for Matthew Cobb July 12, 1973 Scale 1"=100' Edward E. Kelley Reg. Land Surveyor Cummaquid, Mass." ("the 1973 Cobb Plan") recorded in the Registry at Plan Book 277, Page 89, and the lot is described on that plan as being in the ownership of "John L. and Edward O. Handy." Ex. 4.

8. The most northerly portions of Parcel 1 and Parcel 2 are also shown on a plan entitled "'Cummaquid Hills' Subdivision Plan of Land in Barnstable, Mass. for Alexander Blair Scale 1"=100' February 1967 Barnstable Survey Consultants, Inc. 400 Main Street West Yarmouth, Mass." ("the 1967 Plan") recorded at Plan Book 222, Page 85, and the lot is described on that plan as being in the ownership now or formerly of John L. and Edward O. Handy. Ex. 3.

9. When the 1967 Plan was prepared, the owner of the property reflected thereon had no ownership interest in the land abutting Boulder Road on its southerly border from the intersection with Flint Rock Road on the west to Lot 49 as shown on the 1967 Plan on the east, including the Premises. Ex. 12, Agreed Facts ¶ 2.

10. The Premises are undeveloped woodlands. Testimony of Ms. Littlefield.

11. The Premises are landlocked, with no means of ingress or egress from a public way or public road. Ex. 12, Agreed Facts ¶ 5.

12. The only available access to the Premises is across the Subject Roads. Id.

Maintenance of the Subject Roads by the Town [Note 1]

13. On April 10, 1979, the voters of the Town authorized the Town to accept the provisions of G. L. c. 40, § 6C, which authorizes cities and towns to appropriate money for the removal of snow and ice from private ways therein open to public use. Ex. 5.

14. From at least the late 1970s until the present, the Town has erected and maintained road signs and street signs on or near the Subject Roads, including a double street sign for "Braggs Lane" and "Flint Rock Road" with Flint Rock Road marked "private way"; a "Slow Children" sign; a double street sign for "Boulder Road" and "Flint Rock Road"; a "Dead End" sign; two "No Motorized Vehicles" signs on Boulder Road; and single street signs for "Marble Road" and "Cobble Stone Road." Ex. 12, Agreed Facts ¶ 11.a.

15. From at least the late 1970s until 2010, the Town erected and maintained "No Dumping" signs on Boulder Road from time to time. Ex. 12, Agreed Facts ¶ 11.b.

16. The Town has plowed snow on Flint Rock Road and Boulder Road since at least the late 1970s. Ex. 12, Agreed Facts ¶ 11.c.

17. The Town has repaired potholes and graded the unpaved portion of Boulder Road abutting lot 19 as shown on the 1967 Plan since at least the late 1970s. Ex. 12, Agreed Facts, ¶ 11.d.

18. Since 2006, the Town has maintained digital records reflecting work of performed by town employees on the Subject Roads, described in the Town's records as "private" roads, including mowing, brush cutting, sweeping, and tree removal. Ex. 12, Agreed Facts, ¶ 11.e. and Schedule B. See also Ex. 7.

19. The Town has stipulated that the Subject Roads have been used for all purposes for which public roads are generally used in the Town since at least the late 1970s. Ex. 8 ¶ 14.

20. The Plaintiffs have stipulated that they do not claim that the Subject Roads are public roads or town ways or that the Town has any of the liabilities or responsibilities for the Subject Roads as town ways or public ways. The Plaintiffs have also expressly waived any claim that the Subject Roads are or ever have been town ways with the attendant rights, liabilities and responsibilities arising therefrom. Ex. 8 ¶ 15.

History of Access to the Premises

21. Ms. Littlefield testified that she first visited the Premises with her father in the late 1960s or early 1970s, when he showed the property to his children.

22. Thereafter, Ms. Littlefield testified that she visited the Premises one or two times each year and that she has accessed the Premises by automobile, bicycle and foot.

23. Ms. Littlefield further testified that others, including her brothers, a surveyor, appraisers and title attorneys have also visited the Premises, although the frequency of those visits was not described.

The Abutters

24. Mr. George Blanchard is the owner of Lot 49B as shown on the 1973 Cobb Plan, also shown as abutting Parcel 2 to its east on the 2019 Plan, and has regularly accessed his property over the Subject Roads since well before 1995. Ex. 1; Ex. 4; Ex. 12 ¶ 13.

25. The public utilities servicing Mr. Blanchard's house come from Boulder Road. Ex. 12 ¶ 13.

26. Mr. Blanchard purchased as easement over the Subject Roads at the time that he purchased his property. Id.

27. Mr. Michael Turner and Ms. Lynne Turner own Lot 3 on the 1973 Kelley Plan and have regularly accessed that property using the Subject Roads since well before 1995. Ex. 2; Ex. 12 ¶ 20.

28. The public utilities servicing Mr. and Mrs. Turner's house come from Boulder Road. Ex. 12 ¶ 20.

29. Mr. and Mrs. Turner purchased an easement over Boulder Road when they purchased their property. Id.

30. Ms. Susan O'Leary owns Lot 2A on a plan entitled "Plan of Land In Barnstable, Mass. For Edward E. Kelley March 22, 1975 Scale 1"=100' Edward E. Kelley Reg. Land Surveyor Cummaquid, Mass." ("the 1975 Plan") and has regularly accessed that property since well before 1995. Ex. 12 ¶ 21; Ex. 13.

31. The public utilities servicing Ms. O'Leary's house come from Boulder Road. Ex. 12 ¶ 21.

32. Ms. O'Leary's predecessors in title purchased an easement over Boulder Road when they purchased that property. Id.

DISCUSSION

Since the inception of this action, the Plaintiffs' legal theory supporting their claimed right of access to the Premises has evolved. While Plaintiffs originally claimed that they had the benefit of both private and public prescriptive rights over the Subject Roads, by the time of trial their claim was limited to whether they had the benefit of a public right of travel over private ways. [Note 2] While the Plaintiffs have established such a right—that the Subject Roads are private ways open to public use—it is a right with significant limitations, as set forth below.

In Fenn v. Middleborough, the Appeals Court described the three ways by which a way becomes a "public way":

In general, it may be said that an existing way in a city or town in this Commonwealth is not a "public" way—that is, one which a city or town has a duty to maintain free of defects—unless it has become public in character 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. Because the 1846 statute put an end to the creation thereafter of public ways by dedication and acceptance, it has only been possible since that time to create a public way in the statutory manner or by prescription.

7 Mass. App. Ct. 80 , 83-84 (citations omitted); see also Rivers v. Town of Warwick, 37 Mass. App. Ct. 593 , 594-595 (1994), quoting Fenn, 7 Mass. App. Ct. at 83-84; Holbrook v. Town of Hopkinton, 91 Mass. App. Ct. 1128 (2017) (Rule 1:28 Opinion) ("[T]here are three mechanisms by which a way may acquire 'public way' status."). "If a road has never been dedicated and accepted, laid out by public authority, or established by prescription, such a road is private." W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 19 (1979). [Note 3]

That a road is private does not end the inquiry as to whether public access is permitted. "There can be private ways, which are 'defined ways for travel, not laid out by public authority or dedicated to public use, that are wholly the subject of private ownership,' which are open to public use 'by license or permission' of the owner." W.D. Cowls, Inc., 7 Mass. App. Ct. at 19- 20, quoting Opinion of the Justices, 313 Mass. 779 , 782-783 (1943) (citations omitted). Such public use is "by license or permission," and "is terminable at the will of the owner of the private way in question." Opinion of the Justices, 313 Mass. at 783; accord Morse v. Stocker, 1 Allen 150 , 154 (1861) (noting that after the statute of 1846, "any throwing open of a way to the public, or permitting the public to use it, would only amount to a license by the owner, which would afford a justification to all persons who should avail themselves of it, so that they would not be trespassers while it continued, but revocable at his pleasure."); Danforth v. Durell, 8 Allen 242 , 243 (1864) ("The opening of a [private] way in this manner, with the ordinary indications that it is a way for public use, constitutes a license to the public to use it for all the purposes to which it is adapted … until the license is revoked."); W.D. Cowls, Inc., 7 Mass. App. Ct. at 20, quoting Opinion of the Justices, 313 Mass. at 785 (noting that public use of private way "may be terminated at any time at the will of the owner").

In addition to being terminable at the will of the owner, the public's right to use a private way is also more circumscribed than the public's right to use a public way. The public's easement of travel over public ways "has been interpreted in a broad sense. It comprises the installation of water and gas pipes, sewers, telephone, telegraph, electric light and power poles, wires and conduits, fire alarm and police boxes, hitching posts, traffic lights, signs and similar devises, as well as the obvious methods of transportation and passage included in the general term." Opinion of the Justices, 297 Mass. 559 , 562 (1937). Private ways open to public use do not carry the same rights: "The phrase 'open to the public use,' when applied to a private way, connotes that the private way is open to the public at large for ordinary travel. The use allowed the public in such a case, however, is less than the broad easement of travel which the public has within the limits of a public way. An easement in a public way comprises every reasonable transportation of persons and commodities and the installation of utilities and communication lines." Bruggeman v. McMullen, 26 Mass. App. Ct. 963 , 964 (1988).

Perhaps because of the limited rights attendant to private ways open to public use, those ways are often described in the context of failed attempts to establish a public way by prescription, with all the rights attendant thereto. So, for example, in Gower v. Saugus, 315 Mass. 677 , 681-682 (1944), the court determined that the evidence at trial precluded a finding that "Bridge Street" had become a public way by prescription. After reciting evidence of use of the way by delivery men, gas and water meter readers, electric light men, a police officer ("probably … once a month"), the fire department a half dozen times a year but not recently, a member of the board of assessors, pleasure cars, moving vans, priests, and all the people living on the side streets, the court concluded that "all this evidence is entirely consistent with the use of 'Bridge Street' as a private way for the benefit of lot owners in the development, including, of course, persons and public officials having occasion to see them or to deal with them or with their property." Id. at 682.

Similarly, in Jones v. New York, N.H. & H.R. Co., 211 Mass. 521 , 522 (1912), the court rejected plaintiff's contention that a road had become a public way by prescription:

The way across the tracks was created solely as a private way, for the convenience of the mill owner who conveyed the premises to the defendant's predecessor in title, and appears to have been used mostly by employees and others having business at the factory. The use of the crossing by the general public seems to have been merely incidental to an open private way and by permission of its owner … .

In Sprow v. Boston & A.R. Co., 163 Mass. 330 , 340 (1894), also rejecting the plaintiff's contention that a way had become public by prescription, the court stated that "the fact must exist that the way is used as a public right, and it must be proved by some evidence which distinguishes the use relied on from a rightful use by those who have a right of travel over the private way, and also from a use which is merely casual, or incidental, or permissive." And, in Holbrook, 91 Mass. App. Ct. 1128 , another case where the plaintiff sought a determination that a way was public by prescription, the court stated that "the evidence did not distinguish use of Rice Street as a private way open to the public from use as a public way under a claim of right."

Here, the Plaintiffs have foresworn any claim that the Subject Roads are public, both in representations to this court and in their stipulation with the Town (Ex. 8 ¶ 15), and instead claim to have the benefit of public rights of travel over the Subject Roads as private ways. [Note 4] They base their claim in part on G. L. c. 40, § 6C, adopted by the Town in 1979 (Ex. 5), which provides that a city or town which accepts the statute "may appropriate money for the removal of snow and ice from such private ways within its limits and open to the public use as may be designated by the city council or selectmen," and the fact that the Town has plowed the Subject Roads since at least the late 1970s. The Plaintiffs also point to signs erected by the Town on the Subject Roads, maintenance work by the Town on an unpaved portion of one of the Subject Roads, and other work done by Town employees along and on the Subject Roads. Finally, the Plaintiffs also offered evidence, sparse though it was, of use of the Subject Roads by themselves and three abutters to the Premises. [Note 5]

Plaintiffs' decision to abandon any claim of public rights over the Subject Roads acquired by prescription was well-founded. The evidence adduced by the Plaintiffs at trial falls far short of that necessary to establish a public way by prescription. [Note 6] The evidence relied on by the Plaintiffs is, however, sufficient to establish that the Subject Roads are private ways presently open to public use.

CONCLUSION

For the foregoing reasons, Count I of the Second Amended Complaint will be dismissed with prejudice. Judgment shall issue with respect to Count II of the Second Amended Complaint declaring that the Subject Roads are not public ways, but are private ways open to public use by permission of the owners of the fee therein, which permission is terminable at will and which does not include the right, among other things, to install utilities. Judgment shall enter consistent with this memorandum of decision.


FOOTNOTES

[Note 1] With the assent of the Remaining Defendants, Plaintiffs also submitted evidence (1) from the Director of Assessing for the Town as to the records from 2008 to 2019 of assessments of Parcel Map 315, Parcel 10; Map 315, Parcel 12; Map 315, Parcel 22 and Map 315, Parcel 24, identified by Ms. Littlefield as the Premises; and (2) from the Town regarding the Plaintiffs' and their predecessor's payment of real estate taxes since 1972. There was no competent evidence as to whether the Premises are assessed as having access. In any event, evidence regarding real estate tax payments and assessments is irrelevant to this court's determination of the access issue. Accordingly, that evidence has been disregarded.

[Note 2] The Plaintiffs' dilemma is understandable. There does not appear to be any private right of access that would allow development of the Premises. There is no express grant. The Premises do not come out of a common grantor such that an easement could be implied or created by necessity or estoppel. See Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 76-77 (2004), quoting Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953) ("Where during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication."); New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 374 , 378 (1992) ("An easement is said to arise (or be implied) by necessity when a common grantor carves out what would otherwise be a landlocked parcel."); Lafreniere v. Byers, 90 Mass. App. Ct. 1122 (2016) (Rule 1:28 Opinion) ("Because the plaintiff's claim is not against a grantor or a predecessor in title, the line of cases involving easement by estoppel have no application here."). To the extent that a prescriptive right to use the Subject Roads could be established, it would be limited to the use actually made, i.e. not including access to a dwelling and not including utilities. Cumbie v. Goldsmith, 387 Mass. 409 , 411-412 n.8 (1982), quoting Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962) ("[t]he extent of an easement arising by prescription, unlike an easement by grant . . . is fixed by the use through which it was created. . . . '[T]he use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest.' [Nevertheless,] the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use.'"). Public rights, as further described in this memorandum, are similarly unavailing.

[Note 3] It bears noting that there are "statutory private ways," the layout of which is governed by G. L. c. 82, § 21 and which fall within Fenn's first category of public ways. Those statutory private ways are descended from the laws of the Province of Massachusetts, Prov. Laws 1713-14, ch. 8, regulating "particular and private ways" for access to "the lands of particular persons or proprietors" laid out by the town but paid for by either the town or the private parties benefiting from the way. United States v. 125.007 Acres of Land, 707 F.2d 11, 14 (1st Cir. 1983). Plaintiff makes no claim that the Subject Roads here are statutory private ways and there is no evidence in the record that would support such a claim.

[Note 4] In Plaintiffs' post-trial brief, Plaintiffs acknowledge again that they do not pursue an argument that the Subject Roads are public ways, but contend that their claim is instead for public prescriptive rights in the Subject Roads. These theories are, however, one and the same: a way in which public prescriptive rights have been established is a public way. See Fenn, 73 Mass. App. Ct. at 83-84. Based on the Plaintiffs' prior representations in this proceeding, this theory is not available to them.

[Note 5] Regarding use of the Subject Roads by the abutters, the Plaintiffs offered Mr. Schilling's testimony. Mr. Schilling has been a practicing attorney for 46 years specializing in real estate conveyancing and title examinations. Since 1977, he has been a Land Court Examiner. Mr. Schilling's testimony was directed to the easement rights of abutters to the Premises, whose properties are shown as Lots 1A and 2A on the 1975 Plan, Ex. 13, and as Lot 3 on the 1973 Kelley Plan, Ex. 2. Lot 2A abuts Parcel 1 to the west and Lot 3 abuts Parcel 1 to the east and Parcel 2 to the west. Lots 1A, 2A and 3 had the benefit of express easements to use the Subject Roads that appear to have been lost by virtue of a foreclosure in 1981 of a mortgage pre-dating the grants of easements to the abutters. From this fact, Plaintiffs apparently contend that these abutters' use of the Subject Roads, no longer based on an express grant, is support for Plaintiffs' claim of use by the general public.

[Note 6] See, e.g., Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969) (continuous use by the public for more than twenty years and listing of the way as public for purposes of assistance from the Commonwealth under G. L. c. 81 not sufficient to establish a public way); Gower, 315 Mass. at 681; Teague v. Boston, 278 Mass. 305 , 308 (1932) (laying of water main, maintenance of a street light not sufficient to establish public way by prescription); Sprow, 163 Mass. at 339-340 ("If one in walking or driving finds a way open before him, and uses it because it seems to be intended for such use, this alone does not show that he uses the way as a matter of right, and such use would not establish a prescriptive right, no matter how frequent or how long continued it might be. Merely from using what is open to use, without more, no presumption arises that the use is adverse."); Holbrook, 91 Mass. App. Ct. 1128 (occasional use by the general public as a cut-through to reach a public way, inclusion of the way for purposes of state funding, maintenance by the Town, snow and ice removal and annual street cleaning not sufficient to create public way status); Lynch v. Groton, 11 Mass. App. Ct. 1008 , 1009 (1981) (inclusion of the way by the town in its annual estimate to the Commonwealth pursuant to G. L. c. 81 not sufficient); Fenn, 7 Mass. App. Ct. at 85-86 ("The several municipal signs located at various points on Tispaquin and Short streets suggest public use only remotely, and there is no indication in the evidence how long they have been there; in any event, far more significant indicia of municipal improvements were held insufficient in Teague v. Boston, 278 Mass. 305 (1932).").