ANASTASIA MARTY, Trustee of 249 Long Beach Road Realty Trust v. TOWN OF BARNSTABLE.

Introduction

By virtue of the instant action, Anastasia Marty, Trustee of the 249 Long Beach Road Realty Trust (plaintiff / Marty) seeks, inter alia, a declaratory judgment pursuant to G.L. c. 231A § 1 that she is the owner in fee simple and has exclusive possession of the way known as Cross Street (Way) in the Town of Barnstable, Massachusetts. The relevant portion of Cross Street runs to the south of Long Beach Road and northerly of the high water mark of Nantucket Sound. It is adjacent to Parcel A as shown on a plan of land entitled “Plan of Land – Centerville – Barnstable, Mass., GEORGE J. & RUTH H. SCHUMAN, Scale 1 inch = 20 feet, May 1952, Whitney & Basset – Architects & Engineers, Hyannis, Mass.” (premises). [Note 1] For its part, the Town seeks a declaratory judgment that Cross Street [Note 2] is a town way that was properly laid out in 1913. [Note 3]

For the reasons that follow, this court concludes after trial that the defendant failed to sustain its burden of proving that Cross Street is a public way. Specifically, the Town failed to demonstrate strict compliance with the statutory provisions for the laying out of a public way that were in effect at the time of the purported taking. The plaintiff is entitled, therefore, to a declaration that she is the sole owner of the fee in Cross Street with exclusive possession of the same.

A one-day trial was held on November 28, 2012 at which a stenographer was sworn to take the evidence of Robert D. Golden and Chester N. Lay. The sixty-six exhibits admitted into evidence are incorporated by reference into this decision for purposes of appeal. An agreed statement of admitted evidence and proposed findings of law were submitted by both parties, and are incorporated herein to the extent that consistent with this decision.

On all the testimony, exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I find as follows:

1. The plaintiff, Anastasia Marty, is the Trustee of 249 Long Beach Road Realty Trust, under declaration of trust dated January 30, 2001, recorded in Book 14477, Page 285. [Note 4]

2. Plaintiff is the sole Trustee of the Long Beach Road Realty Trust. [Note 5]

3. Plaintiff, as Trustee, is the grantee under a deed from Anastasia Marty to Anastasia Marty, Trustee of 249 Long Beach Road Realty Trust, dated January 30, 2001, and recorded with the Barnstable County Registry of Deeds (Registry) at Book 14477, Page 291 (Marty deed). [Note 6] That deed describes the property being conveyed (Marty property) as follows:

[T]he land, together with the buildings situated thereon, in Centerville, Town and County of Barnstable, Massachusetts, bounded and described as follows:

Beginning at a cement bound located at the Northeasterly corner of the premises herein described as follows:

Thence South 5° 16’ 40” East along the Westerly line of Parcel B as shown on Plan hereinafter mentioned by three lines 184.47 feet more or less, 59 feet more or less and thirty-five feet more or less to the waters of Nantucket Sound.

Thence West by Nantucket Sound to Cross Street; 12° 35’ 40” West by the Easterly side of Cross Street by two lines, 36 feet more or less, 245 feet more or less to Long Beach Road;

Thence North 86° 19’ 30” East by the South side of Long Beach Road a distance of 120.56 feet more or less to the point of beginning.

Containing 25,700 square feet, more or less, and all as shown as Parcel A on a Plan of Land Centerville, Barnstable, Massachusetts, George J. and Ruth H. Schuman, Scale 1” equal 20’ May 1952, Whitney and Bassett Architect and Engineers, Hyannis, Mass., and recorded with Barnstable County Registry of Deed, Plan Book 111, Page 139. [Note 7]

4. The Marty property is shown as comprised of Lot 7, the westerly twenty feet of Lot 5 and Cross Street (southerly of River Street), on the Lewis Plan (Exhibit 1). [Note 8]

5. The Marty property contains a residential dwelling and has a street address of 249 Long Beach Road, Centerville, Massachusetts. [Note 9] The easterly line of the Marty property is approximately 2,350 feet westerly from the intersection of Long Beach Road and Craigville Beach Road. [Note 10]

6. The Marty property is bounded on the north by Long Beach Road, on the east by land of Ray A. Goldberg and Thelma E. Goldberg, Trustees (Goldberg property), [Note 11] on the south by Nantucket Sounds, and on the west by land of Alvin Bodzioch and Mark Bodzioch, Trustees of Bodzioch Family Intervivos Qualified Personal Residence Trust (the Bodzioch property). [Note 12] [Note 13]

7. Commencing with the latest conveyance, the following deeds comprise the chain of title of 249 Long Beach Road into Anastasia Marty:

a. Hytho Pantazalos and Lily H. Bentas, Executors of the Estate of Aphrodite B. Haseotes, to Anastasia Marty; October 18, 1999; recorded with the Registry at Book 12727, Page 98. [Note 14]

b. Cecelia T. McGovern to Vasilios Haseotes and Aphrodite Haseotes; July 18, 1964; recorded with the Registry at Book 1262, Page 23. [Note 15]

c. Elizabeth Joyce Broderick to Cecelia T. McGovern; May 20, 1963; recorded with the Registry at Book 1202, Page 79. [Note 16]

d. Ruth H. Schuman to Elizabeth Joyce Broderick; March 1, 1957; recorded with the Registry at Book 967, Page 6. [Note 17]

e. Confirmatory Deed from Ellen F. Sheehan and Harrison Hale Schaff, Trustees, to George J. Schuman and Ruth H. Schuman; December 12, 1956; recorded with the Registry at Book 962, Page 234. [Note 18]

f. Ellen F. Sheehan and Harrison Hale Schaff, Trustees, to George J. Schuman and Ruth H. Schuman; October 18, 1948; recorded with the Registry at Book 962, Page 234. [Note 19]

g. George W. Wightman, surviving trustee, to George W. Wightman and Ellen F. Sheehan, Trustees; March 18, 1935; recorded with the Registry at Book 510, Page 89. [Note 20]

h. Thomas H. Thompson to George W. Wightman and Thomas H. Thompson; November 18, 1930; recorded with the Registry at Book 510, Page 86. [Note 21]

i. Thomas H. Thompson to George W. Wightman and Thomas H. Thompson; November 18, 1930; recorded with the Registry at Book 510, Page 86. [Note 22]

j. William D. Harvey and Ida R. Harvey to Thomas H. Thompson; October 30, 1928; recorded with the Registry at Book 412, Page 399. [Note 23]

k. Emily I. Meier to Ida R. Harvey; January 25, 1922; recorded with the Registry at Book 373, Page 484. [Note 24]

l. Everett W. Lewis to Emily I. Meier; September 19, 1914; recorded with the Registry at Book 375, Page 163. [Note 25]

8. On December 9, 1912, Everett W. Lewis recorded a plan of land entitled “Map of CHEQUAQUT BEACH [Note 26] Centerville Barnstable Co. Mass., Scale 100 ft. = 1 inch, Everett W. Lewis Owner and Surveyor” Barnstable Registry of Deeds in Plan Book 27, Page 141 (the “Lewis Plan”). [Note 27] Cross Street was first shown on the Lewis Plan. [Note 28] As seen on the Lewis Plan, Everett W. Lewis was the owner of Lots 1 through 16, as well as the owner in fee of Cross Street and River Street, under the following deeds:

a. Mary A. Lovell to Everett W. Lewis; September 30, 1911; recorded in Book 309, Page 401 [Note 29] This parcel of land includes the land that will become known as Cross Street on the Lewis Plan. [Note 30]

b. Mary A. Lovell, Albert N. Lewis and Alexina R. Lewis to Everett W. Lewis; May 25, 1991; recorded with the Registry at Book 309, Page 217. [Note 31]

c. Mary A. Lovell and Albert N. Lewis to Everett W. Lewis; May 25, 1911; recorded with the Registry at Book 309, Page 218. [Note 32]

d. Mary A. Lovell to Everett W. Lewis; October 26, 1912; recorded Registry in Book 320, Page 37. [Note 33]

e. Albert N. Lewis and Alexina R. Lewis to Everett W. Lewis; November 8, 1912; recorded with the Registry at Book 319, Page 84. [Note 34]

9. As of December 9, 1912, Everett W. Lewis was a resident of New Haven, Connecticut. [Note 35]

10. When the Lewis Plan was recorded, the land abutting the westerly side of Cross Street was owned by Joseph E. Lewis and Franklin C. Lewis by deed from Mary A. Lovell dated July 14, 1911 and recorded with the Registry at Book 310, Page 421. [Note 36]

11. From September 30, 1911 until September, 1921, Alice De Camp held record title to the real estate delineated “Alice De Camp” on the Lewis plan [Note 37] to the east under a deed [Note 38] dated September 30, 1911 from Everett W. Lewis to Alice De Camp, which is recorded with the Registry at Book 311, Page 96.

12. From September 15, 1911 until November 1931, Harry E. Cutter held record title to real estate abutting to the east the land delineated “Alice De Camp” on the Lewis plan under a deed from Susan Coddington and Hannah Coddington, dated September 15, 1911 and recorded with the Registry at Book 307, Page 530. [Note 39]

13. No person by the name of “L. Lewis” ever held record title to any real estate on River Street or Long Beach Road in Centerville, Massachusetts. [Note 40]

14. By deed dated July 16, 1913, recorded with the Registry at Book 326, Page 87, Everett W. Lewis conveyed Lots 9 and 10 on the Lewis plan to the Town. [Note 41]

15. Lot 10 is presently used as a right of way to the water and as a beach for the residents of the Town. [Note 42]

16. The Town Clerk’s records of the laying out of Town ways and Barnstable County highways, and of road takings, by both the Selectmen of the Town and the Barnstable County Commissioners are contained in a four-volume set of bound / loose leaf documents located in the vault at the office of the Barnstable Town Clerk, Town Hall, 367 Main Street, Hyannis, Massachusetts, as follows [Note 43]:

a. Book 12 (bound), entitled “Road Reports 1670-1924.” [Note 44]

b. Book 36 (loose-leaf), entitled “Road Book.” [Note 45]

c. Book 50 (loose-leaf) entitled “Road Book.” [Note 46]

d. Book 100 (loose-leaf), entitled “Road Book.” [Note 47]

17. The records of the Barnstable Town Clerk contain the following (the “1913 Selectmen’s Report”) in Book 12, Page 382, entitled “Town of Barnstable Road Reports 1670-1924”:

Report of the selectmen on the petition of Chester Bearse and twenty-eight others, that a Town road be laid out from the terminus of the present road on Long Beach, village of Centerville, extending in a Westerly direction.

After notice to abutting land owners, the Selectmen met on the premises Thursday, February 13, 1913, at eleven o’clock a.m., to hear all persons interested.

It was decided that public necessity and convenience required that said petition be granted.

Beginning at a stone monument marking the Westerly end and Southerly side of the Town road, thence running North 86 d. 5 m. East sixty-one and one-half feet over the land of one Cutter, thence same course over the land of one Da Camp one hundred and forty-four and three quarters feet to the land of Everett Lewis; the North line of the road is parallel to and twenty feet Northerly from the aforesaid described line. Beginning again at the end of the Southerly line of the proposed road at line between said Da Camp and Lewis, thence South 6 d. East ten feet, thence North 86 d. 5m. East over land of said Lewis four hundred and fourteen and one-half feet, thence turns and runs South 13 d. East, one hundred and two feet or to highwater mark. The Northerly of said road over land of said L. Lewis is four hundred and seventeen and five-sixteenths feet, thence turns and runs North 13 d. West to shore of the river. Beginning at a point on the river forty feet Westerly from the last described line, thence Southerly 13 d. East about two hundred and sixty-three feet to the Sound at high water mark.

We award no land damage, but recommend the sum of three hundred dollars be raised and appropriated for the purpose of building said road.

February 18, 1913

Alex G. Cash

Howard W. Parker

Selectmen Town of Barnstable

The above accepted by the Town War. Vol. 30. Page 209. Article 38.

Attest

J.C. Bearse

Town Clerk [Note 48]

18. No plan of the area described in the Selectmen’s Report supra was filed with the Office of the Barnstable Town Clerk. [Note 49]

19. Book 12 of the Town Clerk’s record includes pages 383 (Sea View Avenue, Osterville), [Note 50] 384 (Highland Road, Cotuit), [Note 51] and 385 (Washington Avenue, Hyannis), [Note 52] which are related to roads that were described in the Warrant of the March 4, 1913 Town Meeting. [Note 53]

20. The 1913 Selectmen’s Report appears to have been filed in the Town Clerk’s office on February 18, 1913. [Note 54]

21. There is no evidence to demonstrate on what date the “notice to abutting land owners” referenced in Exhibit 22 was given, if indeed, it ever was. [Note 55] There is no evidence that the notice of the Selectmen’s Meeting on February 13, 1913 was ever posted “in a public place.” [Note 56]

22. Pursuant to Article 38 of the Annual Town Meeting of the Town held on March 4, 1913, the town meeting voted to accept the 1913 Selectmen’s Report. [Note 57] This document is contained in Book 30 of the Town Clerk’s records entitled “Town Meetings and Elections 1912-1923.” [Note 58]

23. The Annual Town Report for the Town of Barnstable for the calendar year 1914 contains at page 106 the following entry by the Town Highway Surveyor:

SPECIAL APPROPRIATION

CENTERVILLE SECTION

Payroll on account Long Beach Road, Centerville, W.A. Jones, Surveyor, J.R. Crosby, Foreman:

J.R. Crosby, Foreman,

47 hours labor, $.25, $11.75

758 hours, horse, $.20, 151.60

i. $163.35

Albert Starck, 214 loads loam, $.10 $21.40

Jack Roberts,

69 hours labor, $.25 $17.25

Frank Roberts,

102 hours labor, $.25 $25.50

Irving Perry,

45 hours labor, $.25 $11.25

Benjamin F. Haley,

111 hours labor, $.25 $27.75

Manuel Lus,

130 hours labor, $.25 $32.50

$299.00 [Note 59]

24. The Barnstable Annual Town Report for the calendar year 1914, at page 58, contains the following entry by the Town Treasurer, J.C. Bearse:

. . . Next, the Centerville Beach road account shows an expenditure of $299.00 without any appropriation; it will be remembered and is shown by the report of 1913, that $300.00 was appropriated for this purpose but no expenditure made during that year. [Note 60]

25. The records of the Barnstable Town Clerk contain the following in Book 12, Page 420 (“the 1918 Selectmen’s Report”):

A petition having been presented to the Board of Selectmen requesting that the town road on Long Beach, Village of Centerville, be extended in a westerly direction, the Selectmen after posting notice of a public hearing, to be held February 21, 1918, met at the store of Nathan H. Bearse for the purpose of hearing all persons interested. No opposition appearing it was voted that the public convenience and necessity required that the road be laid out, and which was done as follows: -

Beginning at a stake standing on the west side of Cross Street and at the northerly side of the road formerly laid out and worked. Thence S. 75 degrees 9 minutes West over land of F.F.C. Lewis, 50 feet: over land of A.D. Ayling 100 feet: over land of the Town of Barnstable, 52.6 feet: over land of E.W. Lewis, 100 feet: over land of Ellouise W. Jameson 300 feet to the land of Marcia S. Pattison. This line constitutes the northerly line of said road and width of road to be 40 feet. We do not recommend any land damages and recommend that the sum of Five Hundred Dollars ($500.00) be raised and appropriated to build such road.

Barnstable Edgar W. Lovell

Feb. 23, 1918 Howard J. Parker

Alex G. Cash

Selectmen of Barnstable

The above road was accepted by the Town at the Annual Meeting, March 5, 1918.

Clarence M. Chase

Town Clerk [Note 61]

26. There is no evidence documenting when the 1918 Selectmen’s Report may have been filed in the Town Clerk’s office. [Note 62]

27. No plan of the area described in the 1918 Selectmen’s Report was filed in the Town Clerk’s office. [Note 63]

28. Pursuant to Article 34 of the Barnstable Annual Town Meeting held on March 5, 1918, it was voted to accept the 1918 Selectmen’s Report. [Note 64]

29. The Barnstable Annual Report for the year ending December 31, 1918, contains, inter alia, at page 55 the following entry under the heading

“APPROPRIATIONS AND AMOUNTS EXPENDED”:

APPROPRIATIONS RECEIPTS AVAILABLE EXPENDED EXCESS

UNEXPENDED

Long Beach Road, 500.00 500.00 498.38 1.62 [Note 65]

30. The Annual Report of the Officers of the Town for the year ending December 31, 1918, contains at page 62 the following entry, in relevant part:

HIGHWAY SURVEYOR’S REPORT ___________

ROAD ACCOUNT, 1918

Appropriated:

Repairs on roads and bridges, $25,000.00

Craigville Road and Ocean Street 8,000.00

Long Beach Road, Centerville 500.00

Osterville State Road, 15,000.00

Total appropriations, $48,500.00

EXPENDITURES

Long Beach Road, Centerville 498.38 [Note 66]

31. An Order of Taking dated April 2, 1931 by the Selectmen, of an Easement in Long Beach Road, was recorded on the same date in Book 480, Page 332. [Note 67]

32. The plan of the easement in Long Beach Road taken pursuant to Exhibit 33 is recorded in Plan Book 43, Page 73 (F1 and F2) and Page 75. [Note 68]

33. Cross Street was not included in the Order of Taking. [Note 69]

34. There is no deed recorded in the Barnstable Registry of Deeds specifically conveying either the fee or an easement in Cross Street south of Long Beach Road to the Town. [Note 70]

35. The area delineated as Cross Street on the Lewis plan southerly of Long Beach Road presently has a grass lawn surface. [Note 71]

36. Long Beach Road, from the intersection with Craigville Beach Road west to the land of the Town is presently a bituminous concrete road varying in width between 21.3 feet at the east end and 18 feet at the west end. [Note 72]

37. Beginning in approximately 1979, the Town installed and continued to maintain a sign reading “Town Way to Water” within the sideline of Long Beach Road at the intersection with the southerly portion of Cross Street. [Note 73]

38. After the present action was filed in March 2007, the Town installed two signs above the mean high water mark of Nantucket Sound on either side of Cross Street stating “limit of Town way to water.” [Note 74]

39. Seaward of the signs stating “limit of Town way to water” is a series of wood posts approximately two feet high with a single rope strand ending near the high water mark. [Note 75]

40. There are two additional signs in the same area stating “notice public right of way to water private beach on either side only walking across private beach permitted by owners no dogs allowed on private beach.” [Note 76]

41. The petition in Registration Case No. 16409 dated March 3, 1937, for the land on the west side of Cross Street, described the eastern boundary of the property as “by the Town way called Cross Street.” [Note 77] The decree in Registration Case No. 16409, Document No. 9395, describes the boundary, in part, as “Easterly by the westerly line of Cross Street.” [Note 78] The Town Clerk and Selectmen received notice of the Citation in Land Registration Case No. 16409 via registered mail, but never filed an appearance and were generally defaulted on May 19, 1937. The Town never made a claim in Registration Case No. 16409 that Cross Street south of Long Beach Road was a town way. [Note 79]

41. The petitioner’s plan filed in Land Court Registration Case No. 16409 shows a hedge approximately forty-five feet long in the center of the southern portion of Cross Street. [Note 80]

42. Cross Street is shown on a plan on file in the office of the Engineering Department of the Barnstable Department of Public Works entitled “Plan of Town Road on Long Beach, Centerville as Defined and Relocated July 20 1920 Scale 100 feet to an inch Frederick O. Smith C.E.” [Note 81] This plan was never filed with the Town Clerk’s office. [Note 82]

43. Cross Street is shown on a plan on file in the office of the Engineering Division of the Barnstable Department of Public Works entitled “Map of Chequaquet Beach” dated February 6, 1913. [Note 83] However, this plan was never filed with the Town Clerk’s office. [Note 84]

44. Robert D. Golden, a registered professional land surveyor, is the Town Surveyor for the Town of Barnstable. [Note 85] Mr. Golden testified on behalf of the defendant. [Note 86]

45. Mr. Golden has surveyed Cross Street in his capacity as Town Surveyor. [Note 87]

46. Mr. Golden testified that the description of the proposed way in Exhibit 22 is incorrect: “The first time I read this [Exhibit 22] I was somewhat taken aback by that very first line, and as I look through it, it didn’t make sense. It was backwards.” [Note 88] Specifically, the courses say “northeasterly” when they should say “northwesterly or southwesterly.” [Note 89] Mr. Golden concluded that the description in Exhibit 22 was “a gross error.” [Note 90]

47. Mr. Golden could locate Cross Street on the ground only by looking at other plans and documents, rather than by using the description in Exhibit 22. [Note 91] He did find four monuments at the intersection of Cross Street and Long Beach, but there is no evidence when those monuments were placed. [Note 92]

48. Mr. Golden testified that if he had only Exhibit 22 to work from to attempt to locate Cross Street on the ground it would be more difficult. [Note 93] No plan was filed with Exhibit 22, although usually a plan would be filed with the Clerk’s office. [Note 94]

49. Exhibit 22 does not describe the width of Long Beach Road over the entirety of the road. [Note 95]

50. Chester H. Lay, a registered land surveyor, testified on behalf of the plaintiff. [Note 96]

51. He testified that he could not locate the description in Exhibit 22 on the ground with any certainty. [Note 97] He testified that the bearings in the description are incorrect; they are “reverse bearings.” [Note 98] The distances given in the description are incorrect when compared to the location of Cross Street on the ground. [Note 99] The description does not outline a closed system, [Note 100] and there is no width for parts of the description of Long Beach Road. [Note 101]

52. Mr. Lay testified that Exhibit 36, the 1931 plan, is evidence that Cross Street had not been constructed at that point. [Note 102]

53. Mr. Lay dug a 26 or 27 inch hole in the southerly portion of Cross Street with an approximately 5 inch post hole digger. [Note 103] He found “a couple inches of sod” on the top of the sample that he had removed from the hole, followed by approximately 6 inches of topsoil. Beneath that, he found pure beach sand. [Note 104] He testified that if the Town had constructed Cross Street at some point in the past, he would have expected to find something else, such as:

“hardening, which is a mixture of clay and loam. It could be gravel. It could be gravel. It could be shells. We use T-base now, which is ground up asphalt, which they wouldn’t have had. But this essentially a barrier beach, this area, so if there were a road on the southerly part of Cross Street, I’d expect to find something firmer than beach sand. That’s not going to sustain, especially wagon wheels back then, let alone automobile . . . Hardening, shells, gravel, asphalt, oil and sand perhaps, they were using in the ‘50s and ‘60s, some indication, other than just beach sand, that there was a surface, a traveled surface there, something hard.”

54. Mr. Lay testified that, historically, the term “loam” referred to hardening, whereas today “loam” refers to topsoil. [Note 105]

Discussion

Plaintiff requests that this court enter a declaration that she is the sole owner of the fee in Parcel A and Cross Street as shown on Trial Exhibit 5. She claims that the laying out by which the Town attempted to take possession of Cross Street in 1913 was fatally flawed, and that the Town cannot meet its burden of proving the that Cross Street is a public way. The Town alleges that it is the owner of Cross Street because the Town properly complied with all the steps for a statutory laying out of a public way in 1913. The court will address these issues in turn.

I. Plaintiff’s Ownership of Parcel A and Cross Street

Both parties have stipulated that plaintiff is the record owner of both Parcel A and Cross Street. Should the court determine that the Town failed to properly effect a taking of Cross Street, plaintiff is entitled to a declaration that she alone holds the fee in Cross Street.

II. Cross Street as a Public Way

The Town in its counterclaim alleges that it took Cross Street as a public way in 1913, and that as a consequence, the public is entitled to use the Street as an access way to the water and as a public beach. The plaintiff asserts that the purported taking was fundamentally flawed and did not meet the statutory requirements. She claims as well, that Cross Street never became a public way, and therefore the public has no right to use it for beach access or for any other purpose.

There are three defined methods by which a Town may acquire a public way: 1) the laying out of the way by public authority in the manner specified by statute; 2) by prescription; and 3) by dedication to public use prior to 1846. Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). The Town does not argue that methods two or three are applicable here, so this court will restrict its analysis to method one.

The statutory scheme in effect at the time the Town attempted to lay out Cross Street as a public way was The Revised Laws of the Commonwealth of Massachusetts that took effect on January 1, 1902. [Note 106] The pertinent sections are c. 48 §§ 65, [Note 107] 67, [Note 108] 71, [Note 109] 81, [Note 110] and 92. [Note 111] These provisions, taken together, delineate a process by which a Town may take private land for use as a public way.

The steps in that process are as follows:

1) Written notice of the intention to lay out a road must be give at least seven days before the laying out to affected landowners either in hand, at their usual abode, or by publication;

2) The laying out;

3) A report with the location and boundaries and measurements of the way must be filed with the Town Clerk at least seven days prior to being reported at a Town meeting;

4) A Town meeting is held to vote on the acceptance of the proposed laying out;

5) The report of the meeting is filed with the Town Clerk who must within 10 days record it in appropriate fashion; and

6) Within two years the Town must take possession of the way. Id.

Each of these steps must be followed in order to secure a taking as they are “not mere formalities.” Markiewicus v. Metheun, 300 Mass. 560 , 563 (1938). Rather, they are “indispensable condition[s], upon compliance with which the right of appropriating private property to public uses of this description can alone be lawfully exercised.” Blaisdell v. Inhabitants of Winthrop, 118 Mass. 138 , 140 (1985); Jeffries v. Swampscott, 105 Mass. 535 (1870) (“This regulation was manifestly not intended to prescribe a mere formality but to lay down the indispensable conditions upon compliance with which the right of appropriating private property to public uses of this kind can lawfully be exercised.”) The failure to comply with even one of these steps is fatal to the validity of the taking. See Markiewicus v. Metheun, 300 Mass. 560 , 563 (1938) (“Consequently, although there was compliance with other statutory requirements, since there was no compliance with these two requirements [giving of written notice and filing of the layout], the taking was not made as required by law.”); Wood v. Milton, 197 Mass. 531 , 534 (1908) (“These various requirements are links in a single chain; if any one is broken or unsound the whole is worthless.”); McLaughlin v. Marblehead, 68 Mass. App. Ct. 490 , 496 (2007) (“[D]ue to the absence of evidence in the record of the town's having taken possession of the property within two years, [the statutory equivalent of the 1902 R.L. c. 48 § 92] operated to void the 1918 layout.”). The requirement of strict compliance with the statute is a result of the important public policies which are implicated when the government appropriates private land for public uses. See Jeffries & Blaney v. Swampscott, 105 Mass. 535 , 536 (1870). The statute acts a safeguard against possible “inconsiderate or capricious action on the part of municipal authorities.” Id.

The party alleging that a way is public has the burden of proving that the laying out was properly executed. See Witteveld v. Haverhill, 12 Mass. App. Ct. 876 , 877 (1981). Consequently, in the case at bar, the Town bears the burden of proving that Cross Street was laid out as a public way. The Town argues that they are entitled to a presumption that the Selectmen acted “with regularity and good faith in performance of their duties.” [Note 112] This presumption, so argues the Town, allows the court to assume that the Selectmen acted fully in accordance with the requirements of the statute, even where supportive evidence is lacking. [Note 113] This argument is not persuasive. The cases cited in support of the Town’s position are inapposite. Any such presumption is inapplicable in the instant circumstances. The burden remains with the Town to demonstrate strict compliance with the relevant statutory requirements. As discussed infra, the Town has failed to carry its burden.

A. Notice

Plaintiff argues that there is no indication in the record when the notice of the laying out was given, and what the contents of said notice are. They conclude that because there is no evidence that notice was given of the intention of the Selectmen to lay out the road, the notice was deficient and therefore the entire laying out is void. The Town argues that there is sufficient evidence that notice was given.

R.L. c. 48 § 67 provides in pertinent part as follows:

No town way or private way shall be laid out . . . unless, seven days at least previous to the laying out . . ., a written notice of the intention of the selectmen . . . to lay out . . . is left by them, or by their order, at the usual place of abode of the owners of the land over which such way is proposed to be laid out . . ., or unless such notice is delivered to such owner in person or to his tenant or authorized agent. If the owner has no such place of abode in the town and no tenant or authorized agent therein known to the selectmen . . . such notice shall be posted in a public place in the town seven days at least before the laying out . . . of such way.

Notices required by law or by contract to be given by one party to the other in order to establish rights or obligations must state with reasonable certainty the essential facts required by law . . . .” Comm’r of Corporations and Taxation v. City of Springfield, 321 Mass. 31 , 35 (1947). It is critical that “[t]he notices issue after the selectmen have formed the intention to lay out the way.” Fitchburg Railroad v. Fitchburg, 121 Mass. 132 , 133 (1876) (emphasis added). “The statute makes no provision for a hearing on the question whether the common convenience and necessity require the way to be laid out.” Id. The intention to lay out the way may not arise after the notice being issued; if such is the case, the notice does not meet the statutory requirement. See id.

The records of the Town Clerk are “conclusive in relation to all business recorded,” Suburban Land Co. Inc. v. Billerica, 314 Mass. 184 , 192 (1943). In this case, the record of the Barnstable Town Clerk (Exhibit 22) regarding the laying out of Long Beach Road states “[a]fter notice to abutting land owners, the Selectmen met on the premises Thursday, February 13, 1913, at eleven o’clock a.m., to hear all persons interested.” [Note 114] The language suggests that at, or after, the conclusion of the meeting “[i]t was decided that public necessity and convenience required that said petition be granted.” [Note 115]

The situation is not unlike that in Fitchburg, as it appears from the language of Exhibit 22 that the Barnstable Selectmen formed the intention to lay out the way after notice had been given. [Note 116] There is no language indicating a decision to lay out the way had been made prior to that time. Based solely upon the language of the road report, given that no other evidence exists regarding the contents of the notice, this court concludes that the notice at issue did not contain the requisite language stating an intention of the Selectmen to lay out the way. See Fitchburg Railroad v. Fitchburg, 121 Mass. 132 , 133 (1876) (“Upon the record as presented, there was no notice to the owners of the land that the selectmen intended or had to decided to lay out the way on the day appointed for the hearing.”).

Additionally, there is no evidence of precisely when or how notice was given. Exhibit 22 indicates that notice was given sometime before the meeting on February 13, 1913. [Note 117] It does not state that notice was given more than seven days in advance, as required by the statute, (see R.L. c. 48 § 67), and there is no other evidence offered to prove compliance with the statutory requirement.

With regard to the manner of notice, Exhibit 22 is silent. At the time of the alleged laying out, Everett W. Lewis, the then-owner of the property, was a resident of New Haven, Connecticut. [Note 118] As he was not a resident of Barnstable, public notice of the meeting should have been posted in a public place. R.L. c. 48 § 67. (“If the owner has no such place of abode in the town and no tenant or authorized agent therein known to the selectmen . . . such notice shall be posted in a public place in the town seven days at least before the laying out . . . of such way.”). The court is unable to conclude, on the evidence before it, that notice was published in a public place at least seven days before the meeting. Therefore, the court finds that this notice requirement was not met. Although failure to comply with any of the statutory requirements renders a laying out void, the court will nonetheless discuss the laying out and possession requirements.

B. Laying Out and Construction of Cross Street

The Plaintiff claims that the description of the road to be laid out does not describe Cross Street as it exists on the ground today, and that there is no evidence that the Town took possession of Cross Street within two years of the alleged laying out. The Defendant argues that the said description corresponds with Cross Street as it exists on the ground, but only (1) after correction of several “scriveners’ errors” and (2) when considered in conjunction with various other documents. The Town also argues that there is sufficient evidence to infer that the way was constructed in 1913 or 1914.

i. Laying Out

R.L. c. 48 § 71 provides that the laying out must include “the boundaries and measurements of the way.” This is required because “[i]t is material to the landowner to know exactly what portion of his land is to be taken and to the voters to know exactly what the proposition is upon which they are to decide.” Jeffries & Blaney v. Swampscott, 105 Mass. 535 , 536 (1870). “The presumption is in favor the owner of the land, and any act done by public authority interferes with his rights should be, as it always may be, clear and intelligible.” Glover v. Boston, 80 Mass. (14 Gray) 282, 288 (1860). Therefore, if the description cannot be located on the ground, it is insufficient to operate as a laying out of a public way. See Jeffries & Blaney v. Swampscott, 105 Mass. 535 , 537 (1870); Markiewicus v. Methuen, 300 Mass. 560 , 563 (1938) (stating that where “it was impossible to ascertain the precise land to be taken” the taking was void).

Here, neither party was able to satisfactorily locate the description on the ground. Both surveyors testified at trial that the description of the way to be laid out in Exhibit 22 is incorrect. [Note 119] A cursory inspection of the relevant document reveals a number of errors. The initial bearings read northeast, when they should read northwest or southwest. [Note 120] The distances in the description do not match the distances on the ground. [Note 121] There is no given width for a portion of Long Beach Road. [Note 122] It is clear that, had a landowner examined Exhibit 22 in an attempt to determine the portion of his land that the Town intended to take, he would have been unable to do so. The description in Exhibit 22 is, if not incorrect, at the very least too ambiguous to satisfy the requirements of the statute. Therefore, it will not suffice to provide the basis for a statutory laying out.

The Town argues that the rules of construction that apply to deed interpretation should apply to Exhibit 22, which they allege would render the description accurate. The court is not persuaded by this argument for two reasons. First, there is no legal basis on which to conclude that the rules of deed interpretation are applicable to this situation. Second, policy considerations weigh against the Town’s position. The policy behind the requirement of a specific description of private land to be taken for a public purpose is clear - a property owner’s significant interest in his private land is to be protected against improper municipal action - and the statute is drafted so as to operate as a safeguard against the municipality’s exercise of its eminent domain powers. See Jeffries & Blaney v. Swampscott, 105 Mass. 535 , 536 (1870). The requirement that there be an unambiguous description of the private property to be taken, is a necessary component of this protection. See Glover v. Boston, 80 Mass. (14 Gray) 282, 288 (1860) (“The appropriation of private property to the public use, which is one of the highest acts of sovereign power, should not be accomplished by the use of ambiguous or uncertain language.”). Where alternate rules of construction need to be employed in order to render a description comprehensible, then clearly that description cannot be said to be unambiguous. Such is the case here. The Town may not rely on the rules of deed construction to attempt to clarify the description in Exhibit 22.

The Town relies in part on the fact that Mr. Golden was able to survey Cross Street. Mr. Golden testified that he was able to place Cross Street on the ground only by using various other documents and plans. [Note 123] Some of these documents were not on record (or even in existence) at the time of the laying out in 1913. [Note 124] It is unreasonable that a landowner should have to rely on extraneous documents in order to determine what portion of his land the Town intends to take. To allow a municipality to rely on outside documents to reach the level of clarity required by the statute shifts the burden to the landowner, when the statute clearly placed that burden upon the municipality. See Glover v. Boston, 80 Mass. (14 Gray) 282, 288 (1860) (“The presumption is in favor of the owner of the land.”). See Jeffries & Blaney v. Swampscott, 105 Mass. 535 , 536 (1870). It may be possible to place Cross Street on the ground relying upon other documents, i.e. various deeds and plans. However, that fact serves neither to remedy the obvious errors in the 1913 description, nor to bring the laying out into compliance with the statute.

ii. Possession

There is no evidence that the Town constructed Cross Street on the ground in 1913 or 1914, which would constitute taking possession of the land within two years, as per the requirements of R.L. c. 48 § 92. Actual possession must be shown. See Whitney v. Lyon, 122 Mass. 338 , 342 (1877). The placement of stone bounds or monuments does not satisfy the possession requirement, see Parker v. County of Norfolk, 150 Mass. 489 , 490 (1890), nor does entry for the purpose of laying sewer or water pipes. See Lawrence v. Nahant, 136 Mass. 477 (1884). Where more than one road is laid out, possession of each individual road must be proven; entry for the purposes of possession onto one road is insufficient to constitute taking possession of another road, as the statute treats each way laid out individually. See McLaughlin v. Marblehead, 68 Mass. App. Ct. 490 , 496-97 (2007).

Mr. Lay testified that, based upon the hole he bored into Cross Street to examine the ground materials, there was no evidence that any type of hardening was ever placed upon the ground that would indicate construction of Cross Street. [Note 125] Although the Town argues that Mr. Lay testified that “loam was used like hardening back then,” what Mr. Lay in fact testified was that “loam back then was probably more like hardening.” [Note 126] The Town’s argument misconstrues Mr. Lay’s testimony so as to reach an interpretation different from that if this court. The court construes Mr. Lay’s testimony to mean that where the term “loam” is used in old records, for purposes of modern interpretation, the word “hardening” could be substituted. In the context of Exhibit 27, this would mean that the appropriation for payment to Albert Starck for 214 loads of “loam” on account of Long Beach Road would in fact be payment for 214 loads of a hardening-like substance. If Cross Street had been constructed with that “loam,” then Mr. Lay should have found what we now refer to as hardening, or a mix of clay and loam, not 6 inches of topsoil. [Note 127] Although an appropriation was clearly made for road materials in 1913, see Exhibit 27, and likely used in 1914, see Exhibit 28, the evidence states only that these materials were used in the construction of Long Beach Road, with no reference to Cross Street. Since the alleged layout included two roads, Long Beach Road and Cross Street, possession of each way must be proven. See McLaughlin v. Marblehead, 38 Mass. App. Ct. 490 , 497 (2007). The inference from Exhibits 27 and 28 is that possession of Long Beach Road alone was taken in 1913 or 1914.

The 1931 plan of Long Beach Road supports the conclusion that Cross Street was never constructed. Mr. Lay testified that in looking at the 1931 plan of Long Beach Road [Note 128] he saw no indication that Cross Street had been constructed. [Note 129] He testified that the plan clearly delineated then-existing roads and driveways with dashed lines and the words “tar surface” and “private right of way.” [Note 130] However, none of these indicators are present on the area of plan labeled as “Cross Street.” [Note 131] It appears that, as of 1931, Cross Street had not been constructed.

Based upon the trial record, this court concludes that the Town did not take possession of Cross Street within two years of the alleged 1913 laying out. This alone is sufficient to void the taking of Cross Street as a public way. See McLaughlin v. Marblehead, 38 Mass. App. Ct. 490 , 496 (2007). When considered in conjunction with the lack of notice and the flawed description in the laying out, this court concludes that the attempted taking as a public way of that portion of Cross Street southerly of Long Beach Road is invalid and the Town never came into possession of the said Way. Therefore, this court need not address the other statutory requirements for thee laying out of a way, as the failure to meet these three requirements will more than suffice to invalidate any purported effort in this regard, by the Town. See Markiewicus v. Metheun, 300 Mass. 560 , 563 (1938) (failure to meet one of the statutory requirements renders the taking invalid).

Conclusion

In light of the foregoing, this court concludes that the Town has not met its burden of demonstrating that Cross Street southerly of Long Beach Road was taken as a public way. Therefore, as the Town is without rights in that portion of Cross Street that is adjacent to Parcel A, as shown on Trial Exhibit 5. The Plaintiff is entitled therefore, to a declaration that she is the owner in fee of the said Parcel A and the portion of Cross Street adjacent thereto. [Note 132]

Judgment to enter accordingly.