26 Mass. App. Ct. 379 | Mass. App. Ct. | 1988
Hawks Road in Deerfield, originally an Indian trail, was laid out as a county highway in 1754. From its intersection with Upper Road in Deerfield, it runs north and west into the neighboring town of Shelburne. The 1.62 mile segment of Hawks Road involved in this action is unpaved road through woods and wetlands which does not, so far as the record indicates, have any residences or structures. It is used primarily by loggers and farmers, although several persons, at least, use it as a shortcut between Deerfield and Shelburne. The plaintiffs, as trustees of the Allyn W. Coombs, Inc. Profit-Sharing Retirement Plan, own a ninety-seven acre parcel bordering on this segment which they intend to subdivide.
Section 32A, as rewritten in 1983 (by c. 136 of the acts of that year), authorizes “[t]he board or officers of a city or town having charge of a public way . . . , upon finding that a city or town way or public way has become abandoned and unused for ordinary travel and that the common convenience and necessity no longer requires said town way or public way to be maintained in a condition reasonably safe for travel, [to] declare that the city or town shall no longer be bound to keep such way or public way in repair . . . .” The plaintiffs’ contention is that the authority conferred by this section extends only to city or town ways, not to county ways, and that cities and towns, despite their statutory obligation to keep up the county ways within their boundaries (G. L. c. 84, § 1), cannot properly be said to be in “charge of” such ways in view of the pervasive authority of the county commissioners over the original layout, construction, and any subsequent alteration or relocation of such ways and their continuing authority to require cities and towns to repair or alter county highways. See G.L.c. 82, §§ 1, 5, 6, 8, 10-12, 14, & 15. The town focuses on the fact that § 32A, by its terms, applies not only to city and town ways but also to “public ways” in general and urges that it does have
Prior to the 1983 amendment, G. L. c. 82, § 32A, authorized county commissioners, “[u]pon petition in writing of the board or officers of a town having charge of a public way, . . . whenever common convenience and necessity no longer require such way to be maintained in a condition reasonably safe and convenient for travel, [to] adjudicate that said way shall thereafter be a private way and that the town shall no longer be bound to keep the same in repair . . . .”
The 1983 revision had its origin in House No. 3611 of that year, a bill that would have eliminated the petition procedure
The bill was reported out favorably by the committee on transportation (1983 House No. 6019), but not without several significant amendments. The one which concerns us is the substitution, for the words “highway or public way” (in H. 3611), of the words “town way or public way” (inH. 6019). “Public way,” standing by itself, has a broad connotation; “town way or public way” is enigmatic, because all town ways, even those denominated “private,” are public in the sense that the public has an unlimited right of access. Denham v. County Commissioners of Bristol, 108 Mass. 202, 204-205 (1871). The uncertainty created by the phrase “town way or public way” justifies looking at the legislative history, and the com
We recognize that this construction of § 32A leaves the words “public way” (in the phrase finally adopted, “city or town way or public way”) without obvious application. Possibly the draftsmen were concerned that “city or town way” might be read to refer only to ways laid out or accepted by the city or town, as opposed to local ways made public by prescription. See Fenn v. Middleborough, 7 Mass. App. Ct. 80, 83-87 (1979). Perhaps they simply failed to consider that the change from “highway” to “city or town way” might require correlative changes to avoid uncertainty. In any event, we could not avoid the problem by giving “public way” its usual broad connotation: “city or town way” would then be quite superfluous.
Judgment affirmed.
This version of the statute was inserted by St. 1924, c. 289, and remained unamended until 1983. Provisions not reproduced in the text (1) required the town to post notices to warn the public of the status of the way at points where it joined to public ways and (2) specified that it applied only to towns, not to cities.
“Notwithstanding the provisions in Section[s] 1 and 22 of Chapter 84 of the General Laws, the selectmen or road commissioners of a town may, after holding a public hearing, notice of which shall be published in a newspaper of general circulation in the town once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing and by posting in a conspicuous place in the town hall for a period of not less than fourteen days before the day of the hearing, upon finding that a Highway or Public Way has become abandoned and unused for ordinary travel and that the common convenience and necessity no longer require said highway or public way to be maintained in a condition reasonably safe and convenient for travel, . . . declare that the town shall no longer be bound to keep such highway or public way in repair and upon filing of such declaration with the Town Clerk such declaration shall take effect, provided that sufficient notice to warn the public against entering thereon is posted at both ends of such highway or public way, or positions .[portions?] thereof.”
It cannot be contended that “city or town way” was intended to pick up statutory private ways, because a city or town has no obligation to maintain such ways. See United States v. 125.07 Acres of Land, More or Less, 707 F.2d at 14, and authorities cited.
The result may still be achieved indirectly by the more cumbersome procedure of petitioning the county commissioners for discontinuance of the highway (or portion thereof) as a public way (G. L. c. 82, §§ 2-5) and then, if successful, laying out the discontinued portion as a municipal private way (G. L. c. 82, §§ 21-23). See also G. L. c. 82, § 29, authorizing county commissioners to lay out town private ways “for the use of one or more persons who are not inhabitants thereof.”