Public by History: Formal Records Aren’t Always Required
In Town of Concord v. Rasmussen, the Town of Concord (the “Town”) initiated an action against several landowners abutting a road known as Estabrook Road, seeking a declaration that the public had access and use rights to the road. The landowners sought to bar the public from entering a disputed section of the road, which they contended was not a public way. A Land Court ruled in favor of the Town and the abutters appealed. The Appeals Court affirmed the judgment, and the Supreme Judicial Court (“SJC”) again affirmed.
After a bench trial, the Land Court found that the road was originally laid out as a public way in two stages in the eighteenth century. Because records expressly documenting the layout of the southern portion of the road had been lost, the judge relied on circumstantial historical evidence indicating that the road had long been treated as public to find that the road was a public way. On appeal, the abutters argued that the Land Court judge needed direct evidence of the road’s layout to find that the southern disputed portion was ever public.
The SJC disagreed, holding that direct documentary evidence of a public layout is not required to prove that a road was properly laid out. The SJC reaffirmed the principle that Massachusetts recognizes three means of creating a public way: (i) layout by a public authority in accordance with statute; (ii) prescription; and (iii) dedication and acceptance, if done before the method was abolished in 1846. Circumstantial evidence—such as references to the road as a public way in contemporaneous Town records and the Town’s undertaking of maintenance obligations and improvements—can be sufficient to establish a layout. The SJC reasoned that allowing such proof makes sense, given that direct layout records may be lost or destroyed over time. So long as the evidence permits a fact finder to conclude that it is “more likely than not” that a statutory layout occurred, the absence of formal records does not defeat such a finding. The SJC concluded that there was ample circumstantial evidence to support the Land Court’s findings in this case.
The abutters also argued that even assuming the road was a public way, any earlier public status had been extinguished in 1932 through an adjudication by the county commissioners that purportedly reclassified the road as a “private way” under G. L. c. 82, § 32A (1932). Addressing the reclassification issue, the SJC reaffirmed the longstanding rule that once a public way has been duly established, it remains public until lawfully discontinued. The Court rejected the abutter’s argument, holding that the commissioners’ adjudication relieved the town of its duty to maintain the road but did not terminate the public’s right to use it.
