DocketNumber: No. 99-P-62
Citation Numbers: 50 Mass. App. Ct. 715
Judges: Porada
Filed Date: 1/19/2001
Status: Precedential
Modified Date: 6/25/2022
The sole issue in this case is whether Bates Lane, laid out by the selectmen of the town of Scituate in 1725 as a “highway,” is a public way under the Subdivision Control Law. If so, then a plan of land depicting a lot with the required frontage under the Scituate zoning law submitted by the plaintiff to the planning board (board) was entitled, to be endorsed “approval under the subdivision control law not required.” The
A way is not public unless it has become such in one of three ways: “(1) a laying out by public authority in the manner prescribed by statute . . . ; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use . . . coupled with . . . acceptance by the public.”
1. The layout. The Land Court judge found that the selectmen did lay out Bates Lane as a “highway” in 1725. However, he found that this evidence was inconclusive as to the status of the way, because no evidence was produced as to why it was laid out. See United States v. 125.07 Acres of Land, More or Less, 707 F.2d 11, 14 (1st Cir. 1983) (“The ancient [Massachusetts] statutes make clear that whether a road is public or private for upkeep purposes depends, not just upon whether it was laid out, but upon why it was laid out” [emphasis in original]). Adopting the rationale of Justice Breyer in United States v. 125.07 Acres of Land, More or Less, 707 F.2d at 14, the judge reasoned that the why of it could best be determined by who paid for it. Finding no conclusive evidence that the town paid anyone damages for the layout of this way, the judge concluded that it was just as probable that the 1725 layout was intended as a private way for the benefit of Israel Whitcomb at whose house lot one of the
On appeal, the plaintiff does not press his trial argument that the town paid damages to land owners for the layout of Bates Lane. The judge had rejected this argument. Instead, the plaintiff relies upon the testimony from an expert witness that towns in colonial times often retained ownership of strips of land for ways in laying out lots in their respective towns, which eliminated the necessity of land damages. Other than offering an expert opinion that this was so, which the judge was entitled not to credit, the plaintiff produced no other evidence that the town had retained ownership of the land that comprised Bates Lane. In the absence of this evidence or any other evidence that the town expended monies for the construction or maintenance of Bates Lane,
In any event, the lack of any evidence of payment of compensation for the layout of Bates Lane was not the only evidence on which the judge relied for his finding that the layout of Bates Lane in 1725 was inconclusive in establishing whether Bates Lane was a public way. This finding was buttressed by evidence that the town voted in 1858 to appoint a person to ascertain if Cowen Lane, otherwise known as Bates Lane, belonged to the town.
2. The acceptance of the way. The judge found that the town in 1726 did accept the 1725 layout. However, the notation on the town records introduced in evidence was that it had been
3. The 1831 map. The judge did find that Bates Lane as it exists today was shown as a road in Scituate on an 1831 map. However, the judge properly found that such evidence standing alone does not prove the public nature of the way. See Fenn v. Middleborough, 1 Mass. App Ct. at 87.
4. The layout as a “highway.” The judge found that the mere fact that the selectmen in the 1725 layout stated that they “laid out a high way in Scituate” does not in and of itself denote a public way. As the judge noted, the term “highway” is susceptible of many meanings. It can refer generally to a road or way, including a county, town or private way. Jones v. Andover, 6 Pick. 58, 60 (1827). The plaintiff argues, however, that, in the context in which it was used in the 1725 layout, it is susceptible of only one meaning, a public way. As support for this premise, the plaintiff relies upon our decision in Martin v. Building Inspector of Freetown, 38 Mass. App. Ct. at 511-512, and the historical evidence presented by him in this case.
Although the town in the Freetown case voted to accept on March 29, 1764, “highways, lately laid out by the selectmen of Freetown on June 7, 1763,” id. at 511, we consider that decision inapposite." In the Freetown case, the highway in question was laid out by the selectmen in 1763 and accepted by the town meeting in 1764, which occurred after the passage of the Laws of the Province of 1727 requiring town meeting acceptance of town ways laid out by selectmen. Ibid. The 1725 layout in this case preceded the enactment of that law. Of greater import, however, is the fact that the determination of whether a way is public or private is ordinarily for the trier of fact to decide on the evidence. W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18, 19 (1979). Because the conclusion reached in Freetown was dependent on the evidence presented, we see no parallel to be drawn between the result reached in that case and this case.
Similarly, the plaintiff’s claim that highways in colonial Scituate were public ways rested in large measure on the testimony of his expert witness, Dr. Jeremy Bangs. However, while
5. Ways prior to 1836. The judge in this case ruled that Bates Lane was laid out as a private way, now known as a statutory private way. The plaintiff argues that a private way did not exist before 1836. There was, however, no difference in the power granted to selectmen to lay out town and private ways by the Revised Statutes of 1836, §§ 66-69, and by the Province Laws 1693-1694, c. 6, § 4, and 1713-1714, c. 8, § 1.
At the time of the 1725 layout, the pertinent statutes were the Province Laws for the years 1693-1694 and 1713-1714. The Province Laws 1693-1694, c. 6, § 4, empowered selectmen to lay out “particular and private waves, for such town only, as shall be thought necessary, so as no damage be done to any particular person in his land or propriety without due recompence to be made by the town, as the selectmen and the party interested may agree, or as shall be ordered by the justices in quarter sessions upon inquiry into the same by a jury to be summoned for that purpose.” The Province Laws 1713-1714, c. 8, § 1, made it clear that the selectmen were granted the additional power to lay out “particular or private ways, between any of the inhabitants or proprietors within their respective towns, as shall be thought necessary, . . . so as no damage be done to any particular person, or his propriety, without due recompence to be made either by the town, if concerned, or such of die inhabitants or proprietors who desire and reap the benefit of the same.”
The Revised Statutes of 1836, §§ 66-69, while dropping the use of the archaic language which referred to both town and
In sum, resolution of the conflicting evidence in this case was for the judge. Martin v. Building Inspector of Freetown, 38 Mass. App. Ct. at 512. His finding that the plaintiff failed to
Judgment affirmed.
There is no evidence of prescription or dedication in tins case.
Although there was evidence that another fork of the layout ended at a watering place, the nature of which was unclear, there was no evidence that there were any other houses or house lots on Bates Lane in the 1725 layout.
The judge found Bates Lane is a hard-packed dirt road with gravel in some locations. He found that the traveled portion of the road varied from thirty feet in width to six feet in width and that one could travel the entire length of the road in a small pickup truck but not a passenger vehicle because of protruding rocks. He also found that stone walls line most of Bates Lane with occasional breaks in the walls.
No evidence was presented as to the resolution of this inquiry.