38 Mass. App. Ct. 605 | Mass. App. Ct. | 1995
This is an appeal by the plaintiffs, E. David Nylander, J. Lance Nylander, and Janet Nylander, from that portion of a judgment entered in the Superior Court declaring that the defendant Barbara Potter and other abutters have a right to use Bachellor Road, a former town road, for access to their property, including a portion of the road which runs through Nylanders’ property. Potter has filed a cross appeal to that portion of the judgment which enjoins her from placing utility poles on the road.
Potter filed an answer to the Nylanders’ complaint and in a counterclaim sought (1) a declaratory judgment that she has the right to use the Nylanders’ portion of Bachellor Road for ingress and egress and to place utility poles on the Nylanders’ property and (2) damages.
The matter was heard by a judge, sitting without jury. After the trial, the judge filed a memorandum of decision that contained his findings of fact, rulings of law, and order for judgment. We summarize the facts found by the judge.
The Nylanders and Potter own land which abuts both the easterly and westerly sides of Bachellor Road in the town of Warwick (town). In March, 1879, the town voted to discontinue Bachellor Road as a town road.
Bachellor Road runs approximately north and south from a point on the easterly line of Hastings Heights Road to a point on the southerly line of the Athol Road in the town. Its present condition is unimproved, rutted, and overgrown, with rocks and outcroppings that make it almost impossible for vehicle travel at some locations.
Bachellor Road existed where it is at present in November, 1793, when Joshua Dean granted the property, formerly known as “Bachellor Farm” (now Potter), to Samuel Fay. The road has been variously described in deeds in the Potter chain of title as “an ancient road known as Bachellor Road,” as a “town road” and as a lane and bridle road. The “Bacli
The Nylanders’ property abuts both sides of Bachellor Road for approximately 100 feet as the road runs off Hastings Heights Road. The next approximately 788 feet is bounded by the Nylanders’ property on the west and Potter’s land on the east.
In July of 1988, Potter obtained a building permit to construct a house on her property. She also requested a permit from the board of selectmen of Warwick to place two utility poles on Bachellor Road to provide her new home with electric and telephone service. She was granted the permit, and two poles were put in place, one of which is located within the 100 foot section of Bachellor Road which is abutted on both sides by the Nylanders’ property.
A friend of Potter, one Fellows (see note 2, supra), began aiding Potter in the construction of her house. Both Potter and Fellows entered Potter’s property by passing over the contested 100-foot strip. Trucks engaged in the construction of Potter’s house passed over the same portion of Bachellor Road. As a result, the Nylanders put up snow fences blocking the road and posted no trespassing signs. The fences were removed by Fellows, and this action followed.
On appeal, the Nylanders argue, among other things, that discontinuance of a public way does not create a “public access” private way. We do not reach that argument because we hold that, in the circumstances present here, the judge properly ruled that Potter had an easement of travel over Bachellor Road because she was an abutter.
We start our analysis by noting that Bachellor Road was a public way when it was discontinued by the town.
Although discontinuance of a public way terminates the public easement of travel, we hold that the discontinuance does not terminate the private easement of travel which abutters enjoy. We conclude that when the town discontinued Bachellor Road as a town road, the abutters retained their private easement of travel over the road to and from their property.
Under G. L. c. 187, § 5, an owner of property who has a deeded easement over a private way, has the right to install gas and sewer lines and telephone and electric service “on, along, under and upon” the easement. Barlow v. Chongris & Sons, ante 297 (1995). The statute, however, does not extend to unrecorded property rights. See Cumbie v. Goldsmith, 387 Mass. 409, 411-412 n.7 (1982). Accordingly, the defendant Potter may not install utility poles in the disputed stretch of Bachellor Road.
Judgment affirmed.
In May, 1988, the town voted to discontinue all public roads in the town, except those on an attached list of public ways. Bachellor Road was not on the list of roads retained as public roads. See Rivers v. Warwick, 37 Mass. App. Ct. 593, 594 (1994).
In their brief, the Nylanders state that there are two disputed stretches of Bachellor Road •— the first 100 feet and the western half of the next 788 feet. However, at the trial, the Nylanders referred only to the 100-foot portion as the disputed stretch. For simplicity’s sake, we refer to the first 100 feet as the disputed stretch. Our decision, of course, encompasses the next 788 feet.
The Nylanders acquired their title to the property east of Bachellor Road by inheritance from their father. They acquired an additional eight-acre parcel to the west of the road by direct conveyance in 1982. Potter acquired her title to the parcels lying east and west of the road by direct conveyance in 1987.
An examination of the titles shows that the Nylanders’ property and the Potter property were never merged and have always been separate and distinct parcels.
It is clear from the town records that Bachellor Road was laid out as a town road in 1839. “From at least the Province Laws of 1693-1694, c. 6, § 3, ‘town ways’ or ‘town roads’ have carried the connotation of public ways laid out and usually paid for by the town.” Rivers v. Warwick, 37 Mass. App. Ct. at 595-596. The reference in the town records establishes that Bachellor Road was a town road open to the public at the time it was discontinued in 1879.
Potter tried the case on the theory that she had an easement by prescription. She introduced evidence that, for many years, members of the public used Bachellor Road. There was evidence introduced by the Nylanders that the public used the road only after obtaining permission from the Nylanders.
The judge rejected Potter’s theory and held that Potter had an easement to travel on the road which she obtained as an abutter and not by prescription.
We note that the majority of courts that have considered the issue have concluded that, although title to a discontinued public roadway may be vested in one abutter, it is subject to the rights of other owners of abutting land to have access to their property. See Sevener v. Faulkner, 253 Ark. 649, 650 (1972); Mosteller v. Southern Ry. Co., 220 N.C. 275 (1941); Knierim v. Leatherwood, 542 S.W.2d 806, 810 (Tenn. 1976); Spradley v. Hall, 57 S.W.2d 182 (Tex. Civ. App. 1933). Also see Annot., Private Easement in the Way Vacated, Abandoned, or Closed by Public, 150 A.L.R. 644 (1944); 39 Am. Jur. 2d Highway, Street & Bridges § 185 (1968).