TOWN OF CONCORD, Plaintiff, v. NEIL E. RASMUSSEN, ANNA W. RASMUSSEN, BROOKS S. READ, SUSANNAH KAY, RUSSELL ROBB III, LESLEE ROBB, and THOMAS WRAY FALWELL, TRUSTEES of the PIPPIN TREE LAND TRUST, PRESIDENT and FELLOWS of HARVARD COLLEGE, JOHN K. BAKER, TRUSTEE of the NIELSEN REALTY TRUST, and NINA I.M. NIELSEN, TRUSTEE of the BAKER REALTY TRUST, Defendants

In advance of a trial scheduled to begin February 23, 2021, the plaintiff town of Concord ("Town") and the defendants have each filed motions in limine with respect to certain evidence expected to be offered by the other. A hearing on the pending motions in limine was held by videoconference on November 10, 2020, after which the court took the motions under advisement. [Note 1] The court rules as follows on the pending motions:

DEFENDANTS' MOTIONS IN LIMINE

1. Motion to Deem Certain Statements by Plaintiff's Rule 30(b)(6) Designee Admitted at Trial and Preclude Plaintiff from Offering Any Contrary Evidence. Denied. The court notes that the defendants did not move to compel the Town to designate a Rule 30(b)(6) witness for the subjects on which Mr. Whelan was not designated. Furthermore, the court does not view Mr. Whelan's testimony, based on the deposition excerpts included with the motions, as justifying exclusion of historical records, the 1763 layout, and other materials discovered by the Town's experts, which were separately disclosed to the defendants, and which Mr. Whelan did not fail to disclose. The defendants, of course, remain free to seek to admit Mr. Whelan's deposition testimony and may impeach him at trial based on his deposition testimony or answers to interrogatories.

2. Motion to Exclude Surveyors of Highways Records Denied. It is not at all clear to the court that the records of assignment to the highway surveyors, independently admissible as ancient records of the Town, do not provide some evidence of corporate action relevant to the claims of the Town. This is so regardless whether the highway surveyors were agents of the Town. See Whelan v. Town of Swampscott, 11, Mass. App. Ct. 822 (1981); Athanasiou v. Town of Westhampton, 23 LCR 220 , 228-229 (2015) (Sands, J.). The extent of probative value of the records remains to be seen, but they are admissible.

3. Motion to Preclude Plaintiff from Offering Circumstantial Evidence of a Statutory Layout Until It Makes a Prima Facie Showing of Town Layout Records Being Lost Denied. The court disagrees with the defendants' reading of Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 (1980) as requiring proof of lost records of a statutory layout before circumstantial evidence of such a layout will be admissible. Fenn allows the court to draw a "factual inference from the evidence taken as a whole that the ways in question were laid out at some anterior time and that the record thereof has been lost." Id. at 86. A factual inference may be drawn with respect to both clauses of the preceding sentence. In other words, circumstantial evidence may be offered from which the court may draw a factual inference with respect to whether the way had been laid out, and circumstantial evidence may be offered from which the court may draw a factual inference with respect to whether the record of such a layout has been lost. As instructed by the Appeals Court in Fenn, the court will consider "the evidence taken as a whole" before deciding what, if any, inferences are be drawn from that evidence.

4. Neil and Anna Rasmussen's Motion to Exclude the Testimony of the Town's Expert Witness, Kristen Heitert Allowed in part, denied in part. The defendants seek to exclude Ms. Heitert's testimony on three separate grounds: (1) that she seeks to testify as to the ultimate legal issue in this case (whether Estabrook Trail is a public way or is otherwise a way open to the public); (2) that she seeks to testify in reliance on historical records that are not the province of an archaeologist; and (3) that her opinions are speculative and based on inadmissible hearsay. The court agrees that Ms. Heitert will not be allowed to testify that the trail was a "private way" or a "public way," as these are legal determinations. She is expected to testify with respect to historical uses of the trail based on her investigations. Such investigations by an archaeologist properly include a combination of use of historical materials as well as examination of physical archaeological artifacts. Any determination whether her opinions are insufficiently based on admissible facts or are speculative, or as to whether she is sufficiently qualified to offer a particular opinion, will be made at trial.

TOWN'S MOTIONS IN LIMINE

1. Motion to Exclude Evidence Post-Dating the 1932 Discontinuance of Estabrook Road Allowed in part, denied in part. The Town, pointing out that it has waived its post-1932 prescription claim, seeks to exclude three fact witnesses, Neil Rasmussen, Christopher Whelan, and Leslie Perrin Wilson, and other potential fact witnesses, on the ground that these witnesses can have no relevant knowledge with respect to the condition of Estabrook Trail or its use prior to the 1932 discontinuance. The defendants argue that Mr. Rasmussen's testimony is relevant to whether the Town "viewed [the trail] as private land" during the period of his ownership. How the Town viewed the trail from 1992 to the present is not relevant to the legal status of the trail as of the 1932 discontinuance, sixty years before Mr. Rasmussen's observations, and Mr. Rasmussen will not be permitted to testify as to the Town's treatment of the trail since 1992. However, to the extent that changes made to the trail since 1932 might be probative of its appearance or condition up to the 1932 discontinuance, testimony as to such changes is relevant. Mr. Rasmussen will be permitted to testify on this limited basis. The defendants seek to inquire of Mr. Whelan and Ms. Wilson as to the Town's records, or lack thereof, concerning the trail. Such records, for the period up to the 1932 discontinuance, are certainly relevant, and inquiry about the search for them is relevant to the "lost records" issue. Inquiry may be made of these witnesses on this subject. The Town also seeks to exclude post-1932 maps and photographs depicting Estabrook Trail. Such documents may be admissible if they shed light on the appearance of the trail at or prior to the time of the 1932 discontinuance; the court will rule on these documents when they are offered at the time of trial.

2. Motion to Exclude Expert Testimony Concerning Estabrook Road's Status As "Private" or "Public" Allowed in part, denied in part. As the court ruled with respect to the proposed expert testimony of the Town's archaeologist, the defendants' experts will not be permitted to testify as to their opinion whether Estabrook Trail was a "public way" or a "private way," as that is the ultimate legal issue to be determined by the court.

3. Motion to Exclude Evidence and Expert Testimony Concerning Other Discontinued Roads Allowed. Accepting the defendants' argument that "consistent and contemporaneous" construction of a statute is probative of the meaning of ambiguous language in a statute, the evidence offered by the defendants is neither consistent nor contemporaneous. The defendants offer evidence of discontinuances in 1929, 1933 and 1955, in Concord and Acton. These discontinuances are not contemporaneous with the 1932 discontinuance of Estabrook Road, and the circumstances of each discontinuance may differ in many respects as to the reason for the discontinuance and the understanding of the parties to the discontinuance. Furthermore, the few examples offered amount to cherry-picking, with no assurance that the few examples of discontinued roads offered by the defendants represent a consistent understanding of the statute throughout the Commonwealth at or about the time of the adoption of the 1924 Act or even shortly thereafter. This is to be distinguished from the apparently universal practice, throughout the Commonwealth, referred to by the Supreme Judicial Court in Burage of including attorneys' fees as part of expenses and costs awarded in disbarment proceedings ("It is agreed that the practice has been for many years for the counties to pay for professional services rendered in prosecuting disbarment proceedings"). Burage v. Bristol County, 210 Mass. 299 , 301 (1911).

Photographs and other evidence of the current condition of roads other than Estabrook Trail are also not admissible, as they are not probative of "contemporaneous" construction of the statute.

So Ordered.