Carmel v. Baillargeon

• Decision Date: 17 January 1986
• Citation: 487 N.E.2d 867,21 Mass.App.Ct. 426
• Parties: Richard D. CARMEL et al. 1 v. David BAILLARGEON et al. 2 (and a companion case 3 ).
• Court: Appeals Court of Massachusetts

Page 867

487 N.E.2d 867

21 Mass.App.Ct. 426

Richard D. CARMEL et al. ¹ v. David BAILLARGEON et al. ² (and a companion case ³).

Appeals Court of Massachusetts Hampshire.

Argued Oct. 9, 1985.

Decided Jan. 17, 1986.

John H. Madden, Jr., for defendants.

Richard F. Buckley for Richard Carmel & another.

Robert W. Kidd for Norman A. Beals & another.

Before GREANEY, C.J., and PERRETTA and KASS, JJ.

KASS, Justice.

In 1775, the inhabitants of Murrayfield (it later became Huntington) declared as a public way Old Wood Road, which ran in a southerly direction and parallel to the east bank of the East Branch of the Westfield River. ⁴ See Avery v. Stewart, 1 Cush. 496, 501 (1848). Contrast Newburyport Redev. Authy. v. Commonwealth, 9 Mass.App. 206, 227, 401 N.E.2d 118 (1980). Never a significant thoroughfare, Old Wood Road nonetheless provided access to rural land in several ownerships lying south of Montgomery Road. We deal with rights in Old Wood Road after alteration of the grade of the county road into which it led closed the northerly end of Old Wood Road.

From 1775 to 1960, the northerly access to Old Wood Road was near a bridge over the Westfield River known anciently as the Norwich Bridge. (See the sketch appended to this opinion.) In 1960, in accordance with a taking made the preceding year, Hampshire County relocated and changed the grade of Montgomery Road so that it was about thirty feet higher than the grade of Old Wood Road. As a practical matter, the northerly terminus of Old Wood Road had become a dead end. Astride Old Wood Road there are, for purposes of this case, parcels of land located in descending order, going from north to south, owned by Carmel, ^{5 5} Keeney, ⁶ Beals; ⁷ Peck, and Baillargeon. (See sketch.) The Baillargeon parcel contains about sixty-five acres and is known as "Little Canada." South of the Baillargeon parcel, Old Wood Road crosses railroad tracks twice and changes names twice. It first becomes Thomas Road and then Carrington Road. The latter joins with Montgomery Road some two miles east of the Norwich Bridge.

The trial judge found that at the time of the physical relocation of Montgomery Road in 1960, an access point to new Montgomery Road "was provided" (the record does not say by whom) at a point about a quarter mile away from the old access of Old Wood Road. A new access road through the Carmel parcel from Montgomery Road was built (again it is not clear by whom) which joined with Old Wood Road at a point just north of the Carmel-Keeney parcel boundary. (See sketch.) Although frequently "barred or gated" by Carmel, the southerly owners, including the owners or inhabitants of Little Canada used the new access road with some consistency. (The Bealses acquired an express right of way from Carmel.) The judge found that the Baillargeons and their predecessors in title had established an easement by prescription over the new access road.

Use by southerly owners of Old Wood Road and the new access proceeded without apparent incident until 1980, when Baillargeon acquired a permit to operate a campground on Little Canada. Assertion of their rights by the parties became passionate when, in 1981, Baillargeon obtained a permit to haul gravel from his holding. The Carmel complaint was filed on May 22, 1981, and the Beals complaint on June 4, 1981. The cases were consolidated for trial.

The judge determined that Old Wood Road had been discontinued (he used the word "eliminated") by implication and that Baillargeon had overloaded the easement he had acquired by prescription. He entered judgment granting the plaintiffs equitable relief which substantially limited Baillargeon's use of the road and new access and which provided for modest damages. Baillargeon has appealed.

1. Status of Old Wood Road as a public way. There was no vote of the town of Huntington to discontinue Old Wood Road. Once duly laid out, a public way continues to be such until legally discontinued. Preston v. Newton, 213 Mass. 483, 485, 100 N.E. 641 (1913). Mahan v. Rockport, 287 Mass. 34, 37, 190 N.E. 810 (1934). G.L. c. 82, § 21. See Schuffels v. Bell, 21 Mass.App. 76, 77, 484 N.E.2d 1343 (1985), and, by analogy, Bliss v. Attleborough, 200 Mass. 227, 230-231, 86 N.E. 299 (1908), the latter an opinion which deals with grade crossings over railroad tracks and which eschews considering whether a public way may be discontinued by implication. Little reason exists for courts to assume that public officials have given up a highway easement in a fit of absence of mind. If discontinuance is what a public body wants, it may act. See, for example, G.L. c. 81, § 22 and c. 86, § 3, which prohibit diminution through adverse possession of a State highway or a public way. See also G.L. c. 82, § 32A, as appearing in St.1983, c. 136, which provides a procedure for discontinuance by municipalities of public ways which have "become abandoned and unused for ordinary travel." Such public action as was taken in this case was taken by Hampshire County--which relocated Montgomery Road--not by the town. ⁸ The trial judge's determination that Old Wood Road had been discontinued was, therefore, in error and so was so much of the judgments as flowed from that determination. Abutters of Old Wood Road are entitled to use it for all purposes for which a public way may be used. The defendants' cutting and trimming of trees which obstructed the way did not constitute a trespass upon, or waste of, property of the plaintiffs.

2. Status of the new access. Since 1846, the establishment of a public way has required public action as prescribed by statute (see G.L. c. 82, §§ 21-24, inclusive [relating to town ways] ) or public, adverse, and continuous use for the prescriptive period. ⁹ Commonwealth v. Coupe, 128 Mass. 63, 64 (1880). Fenn v. Middleborough, 7 Mass.App. 80, 83-85, 386 N.E.2d 740 (1979). Although the new access was a substitute for the old "public way" access, that circumstance does not place a public veneer on it in the absence of statutory action or the requisite public use. Use by the public connotes use by the general public. Scott v. Worcester, 257 Mass. 520, 523, 154 N.E. 328 (1926). White v. Boston Gear Works, Inc., 315 Mass. 496, 499, 53 N.E.2d 1 (1944). Fenn v. Middleborough, 7 Mass.App. at 84, 386 N.E.2d 740. Newburyport Redev. Authy. v. Commonwealth, 9 Mass.App. at 228, 401 N.E.2d 118. Evidence of traffic along the Carrington Road, Thomas Road, and Old Wood Road by persons travelling from a point in Montgomery to a destination in Huntington might have established use by the general public. There was no such evidence, however, and use of the new access had been limited to the few persons who owned land along Old Wood Road south of its junction with the new access. As such, the easement by prescription acquired by those southerly owners was private. See Schuffels v. Bell, supra, 21 Mass.App., at 78, 484 N.E.2d 1343.

Having decided that the southerly owners, notably Baillargeon, have a private easement of passage over the new access, acquired by prescription, it remains to consider the scope of the easement. The applicable principles were reviewed, relatively recently, in Glenn v. Poole, 12 Mass.App. 292, 423 N.E.2d 1030 (1981). In summary, these are that the extent of the easement is fixed by the use through which it was created, but that use does not fix the scope of the easement eternally. The use may change over time through normal evolution to satisfy new needs, but the variations cannot be substantial; they must be consistent with the general pattern formed by the adverse use. Id. at 292-293, 423 N.E.2d 1030, and authorities there cited. See also O'Brien v. Hamilton, 15 Mass.App. 960, 962, 446 N.E.2d 730 (1983).

The trial judge found that Baillargeon and his predecessors in title used the new...