Erickson v. Clancy Realty Trust ( 2016 )

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15-P-50 Appeals Court
ROBERT J. ERICKSON vs. CLANCY REALTY TRUST & others.1
No. 15-P-50.
Barnstable. November 12, 2015. - January 6, 2016.
Present: Cohen, Grainger, & Wolohojian, JJ.
Way, Public: discontinuance. Estoppel.
Civil action commenced in the Superior Court Department on
March 5, 2010.
The case was heard by Christopher J. Muse, J.
James B. Stinson for the plaintiff.
Harry R. Thomasson for the defendants.
GRAINGER J. Plaintiff Robert J. Erickson appeals from a
declaratory judgment in Superior Court finding that Old County
Road (road) in Eastham was discontinued by a 1903 Superior Court
decree pursuant to "An Act To Promote The Abolition Of Grade
Crossings," Chapter 428 of the Acts of 1890, as amended,
St. 1891, c. 123 (act). The defendants are abutters or nearby
1
David R. Poitras, Deborah R. Sverid, and Scott R. Sverid.
2
landowners in Eastham. On appeal, the plaintiff argues that the
road was not discontinued by the 1903 Superior Court decree and
that it still operates as a public way.
1. Background. The facts are uncontested. The
plaintiff's property is a parcel bounded on the northwest by the
road, which extends from Route 6, a State highway, to an area
past the plaintiff's property. The Cape Cod Rail Trail,
formerly the New York, New Haven & Hartford Railroad (railroad),
lies to the east of the plaintiff's property, and to the south
are parcels owned by the Sverids. The plaintiff claims that the
road is the only means of accessing his property; otherwise, it
is landlocked.
The road was first laid out as a public way on June 19,
1721. It is shown on various maps throughout the eighteenth and
nineteenth centuries. The path of the road crossed over to the
eastern side of the railroad in Eastham, and crossed back to the
western side of the railroad in Wellfleet -- a total of two
grade crossings. In 1890, the act was passed to promote the
abolition of such grade crossings and authorized the Superior
Court, by decree, to confirm a recommendation by a neutral
commission to extinguish a specified portion of an existing
public way and to establish an alternate route that avoided any
grade crossings. See St. 1890, c. 428, § 4. The parties agree
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that the commission's report and a subsequent Superior Court
decree2 (decree) did so.
2. Discussion. The question presented is whether the road
in its entirety, or only segments thereof, were discontinued.
The plaintiff argues that the language of the decree
discontinued only portions of the road that actually crossed the
railroad, leaving other portions as disconnected internal
segments that terminated at each crossing. The trial judge
disagreed, and we review his decision as to questions of law,
and questions of fact based entirely on documents, de novo.3 See
Zaskey v. Whately, 61 Mass. App. Ct. 609, 614 (2004).
a. The decree. We look first to the language of the
petition and the decree. The petition is phrased in the
disjunctive: "petitioners are of the opinion that it is
2
The decree found it necessary to discontinue the road
"where it crosses the location of the railroad at grade about
twenty three hundred feet (2300) northerly of the North Eastham
passenger station in the town of Eastham," "where it crosses the
location of the railroad at grade about fifty-five hundred
(5500) feet southerly of the South Wellfleet passenger station
in the town of Wellfleet," and where it crosses "the railroad
location at grade about sixty-nine hundred (6900) feet southerly
of the South-Wellfleet passenger station in the town of
Wellfleet." The 1903 decree further established "a new highway
forty (40) feet in width . . . to be constructed in the towns of
Eastham and Wellfleet, westerly of the railroad location" "[a]s
a substitute for the aforesaid crossings at grade." (Emphasis
supplied.)
3
Judgment was made following a bench trial limited to the
following issues: (1) whether the 1903 decree discontinued the
portion of the road leading up to the plaintiff's property, and
(2) whether estoppel by deed is applicable.
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necessary . . . that an alteration should be made in such
crossings, in the approaches thereto, in the location of the
public ways, or in the grades thereof" (emphasis supplied).
Such language shows that the petitioners contemplated, at least
as one possibility, the alteration or discontinuance of only the
grade crossings.
Turning to the act itself, it provides that if "any portion
of an existing public way should be discontinued [the
commission] shall so specify" (emphasis supplied). St. 1890,
c. 428, § 4. Finally, the clear language of the decree
specifies only that the grade crossings are discontinued: "the
county road where it crosses the location of the railroad at
grade . . . [is] discontinued" (emphasis supplied). Compare
with Bliss v. Inhabitants of Attleborough, 200 Mass. 227, 231
(1908) ("The commissioners . . . expressly provided in their
report for many discontinuances . . . [as seen in the] statement
that 'the way known as Starkey Avenue is hereby discontinued'").
Further, the commission described the new highway to be a
substitute "for the aforesaid crossings at grade," and did not
address the road in its entirety. We conclude that the trial
judge erred in declaring as a matter of law that the language of
the decree expressly discontinued portions of the road other
than the grade crossings.
5
As a general rule, in the absence of an express
discontinuance, a road is not discontinued by implication.
"Once duly laid out, a public way continues to be such until
legally discontinued." Carmel v. Baillargeon, 21 Mass. App. Ct.
426, 428 (1986), citing Preston v. Newton, 213 Mass. 483, 485
(1913). The town of Eastham has undertaken no official action
to discontinue the road, such as holding a public hearing. See
G. L. c. 82, § 21.
These conclusions, however, do not eliminate every
possibility of discontinuation of the road as a whole. We
cannot simply ignore that the strict application of the express
language of the decree creates surviving segments of
disconnected road that run between the discontinued grade
crossings, serving no apparent remaining use. Our cases
recognize that it is appropriate to rely on extrinsic evidence
where a literal statutory construction yields an absurd or
unworkable result. See, e.g., North Shore Realty Trust v.
Commonwealth, 434 Mass. 109, 112 (2001), quoting from Champigny
v. Commonwealth, 422 Mass. 249, 251 (1996) (declining to "adopt
a literal construction of a statute if the consequences of such
construction are absurd or unreasonable"). See Attorney Gen. v.
School Comm. of Essex, 387 Mass. 326, 336 (1982) (literal
meaning of statute relating to private school pupils' right to
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public transport would require town to subsidize travel to any
location in United States).
Moreover, the Supreme Judicial Court has recognized that
even "without express words to that effect," the creation of a
substitute to an existing road, i.e., "an alteration of a way by
the construction of it in a different place, where it will serve
all the purposes for which it was designed or used," will
discontinue "that part of it not included in the new location."
Commonwealth v. Boston & Albany R.R., 150 Mass. 174, 176 (1889).
This language requires factual determinations, namely findings
related to "all the purposes" for which the original road "was
designed or used." Ibid. Boston & Albany R.R. also recognizes
the need for additional factual inquiry, namely, the effect of
the contemplated discontinuance on adjacent landowners,
landowners in the vicinity, and on the public. Id. at 177.
This effect is to be measured at the time of the decree and not
thereafter. "[W]hat occurred after the change was made [is] of
little significance . . . . These facts are competent only so
far as they tend to show the nature and condition of the subject
matter under consideration at the time the adjudication was
made." Id. at 176.4
4
The instant case differs in its particulars from
Commonwealth v. Boston & Albany R.R., supra, where the petition
did not target specific locations but, rather, was aimed at
alteration to the "hilly and rough" road. Id. at 176-177. We
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Factual determinations were not made here as a consequence
of the judge's reliance on the statutory language alone as
sufficient to discontinue the entire road. In light of our
contrary reading, while confronted with the anomalous creation
of freestanding sections of remaining road, we conclude that
further proceedings are required to resolve the issue of
discontinuation by implication.5
b. Estoppel by deed. We turn next to the defendants'
assertion that the doctrine of estoppel by deed bars the
plaintiff from his claim in this action. Estoppel by deed
prevents an assertion of title to property previously assigned
to another. See Gibbs v. Thayer, 6 Cush. 30, 32-33 (1850). We
observe as an initial matter that the plaintiff acquired his
property many decades after the decree of 1903. See Makepeace
Bros. v. Barnstable, 292 Mass. 518, 524 (1935) ("The
respondent's claim . . . is not strengthened by any theory of
estoppel by deed, since the respondent was neither party nor
are instructed however by that decision in the appropriate
avenues of inquiry to be applied in this and similar cases where
we are faced with an overtly anomalous result.
5
Implication may be derived from many rational bases, and
we do not intend to imply that the judge is limited on remand to
evidence falling within the strict limits outlined above. As an
example, we note that the plaintiff's property itself is not
located on one of the internally disconnected segments between
grade crossings. Similarly, we express no opinion on the
existence of an easement by necessity, providing the plaintiff
an alternate route to a public way. See, e.g., Flax v. Smith,
20 Mass. App. Ct. 149, 152 (1985).
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privy to such deeds but is in the position of a stranger
thereto"). Neither the plaintiff nor his predecessors in title
can properly be characterized as transferors in connection with
the act and the decree. Accordingly, the circumstances normally
triggering the invocation of this principle are absent here.
However, the defendants point to a deed executed by the
plaintiff in connection with his transfer of an adjoining parcel
in 1979:
"NORTHWESTERLY by land of Joseph A. and Norman J. Poitras
and by land of James T. and Gertrude A. Clancy, being the
middle line of Old County Road, as formerly laid out, now
discontinued, six hundred eighty-two and 74/100 (682.74)
feet (emphasis supplied).
This language indisputably refers to the road as "now
discontinued"; what is considerably less clear is whether the
choice of words was intended as a conveyance of the plaintiff's
interest in a right of passage over the road, or is simply a
reference to the road for purposes of metes and bounds, adding
as a gratuitous description that it was discontinued.6
To the extent the defendants intend to press this issue on
remand, the judge has discretion to consider evidence relevant
thereto. The judgment of the Superior Court is vacated, and the
6
The record, paradoxically, also contains the deed by which
Poitras acquired his property in 1995. That deed refers to the
"intersection of Old County Road" with no mention of its having
been discontinued.
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case is remanded for further proceedings in accordance with this
opinion.
So ordered.