Fenn v. Town of Middleborough

Decision Date26 February 1979
Citation386 N.E.2d 740,7 Mass.App.Ct. 80
PartiesCharles F. FENN et al. v. TOWN OF MIDDLEBOROUGH.
CourtAppeals Court of Massachusetts

William C. Decas, Middleboro, for defendant.

Joseph F. Linehan, West Bridgewater, for plaintiffs.

Before KEVILLE, ARMSTRONG and BROWN, JJ.

ARMSTRONG, Justice.

The plaintiffs, husband and wife, brought this action to confirm their title to a 21-acre parcel of vacant land in Middleborough. Their petition alleged, in part, that the parcel lay at the junction of, and was bounded on two sides by, public ways known as Short Street and Tispaquin Street. The town had to be given notice of the proceeding, both as owner of one of the abutting parcels and because the petition sought determination of the boundaries of the ways mentioned. See G.L. c. 185, §§ 29 and 39. Of those given notice, the town alone filed an appearance. By its answer it conceded the correctness of the boundaries set forth in the Fenns' petition but denied that Short Street and Tispaquin Street were public ways, at least where they bounded the Fenns' land. The case went to trial on that issue only. 1

The evidence took three forms. The first was testimony by the plaintiff Charles F. Fenn to the effect that he had purchased the property sixteen years earlier and had driven past it only occasionally since that time. He testified that the surfaces of the roads at his property, and over most of their respective lengths, are hard dirt or gravel, that they are at least two car widths wide, that there are street signs at certain intersections of the roads, and that Tispaquin Street connections to accepted public ways at both ends, as does the far end of Short Street. He testified to having seen "traffic" on the two streets, the nature and volume of which were not disclosed. He disclaimed any knowledge concerning use of the streets prior to his purchase. The second form of evidence was copies of three maps of Middleborough, kept in the Plymouth County Registry of Deeds, dated 1855, 1879, and 1903, which showed that Tispaquin and Short Streets were existing ways at those times; the maps were not offered for the purpose of proving (and they did not in fact indicate) the legal status of either street as a public or private way. 2 The third form of evidence was a view taken by the judge, which was evidently the source of her findings concerning the present condition of the ways and the properties abutting them.

The evidence showed that Tispaquin Street runs from Wareham Street (Rte. 28) northerly past the intersection of Thomas Street, the intersection of Chestnut Street, the junction of Short Street, and the intersection of Rocky Meadow Road, to Plymouth Street (old Rte. 44), a distance of approximately three and a half miles. Short Street runs from Tispaquin Street northwesterly to Plymouth Street, a distance of approximately one mile. The plaintiffs' land lies at the junction, bounded northeasterly by Short Street and easterly by Tispaquin Street. The judge found that the only layout of either street by a public body was of the southerly end of Tispaquin Street, from Wareham Street to (apparently) Thomas Street; that there are red town of Middleborough street signs for Tispaquin Street at its junction with Wareham Road and for Short Street at its junction with Tispaquin Street at the locus; that there is an older white town street sign for Tispaquin Street at its junction with Plymouth Street; that there are official stop signs at the points where Tispaquin Street crosses Thomas Street and Chestnut Street; that the portions of Tispaquin and Short Streets adjacent to the locus do not have macadam or paved surfaces but do have hard gravel surfaces; that Tispaquin Street is at least as wide in the area adjacent to the Fenns' land as in the section where it has been laid out; that there are stone walls paralleling Tispaquin Street for most of its strength where there are no homes; that on the easterly side of Tispaquin Street, approximately 600 feet south of its junction with Short Street, there is an attractive home in the location where a home is shown on the 1855, 1879 and 1903 maps; that there are areas of paving in the road by the house; that on the right hand side of the road as a motorist approaches the house in either direction there is a warning sign with the message, "Slow Children," a sign typical of those used in several municipalities but without a legend as to its source; that there are several new homes which have been constructed on Tispaquin Street north of Short Street; that there are also several homes on Short Street at the end close to Plymouth Street; that Short Street is paved in that portion; and that there are no other homes near the locus on either Short Street or Tispaquin Street.

On these findings the judge drew the conclusion that the streets in question were public ways. After discussing the distinction between the creation of public ways by dedication, abolished by St.1846, c. 203, § 1 (see now G.L. c. 84, § 23; see also Uliasz v. Gillette, 357 Mass. 96, 103-104, 256 N.E.2d 290 (1970)), and the creation of public ways by prescription, which was held to be unaffected by that statute in Jennings v. Tisbury, 5 Gray 73 (1855), and Commonwealth v. Coupe, 128 Mass. 63 (1880), the judge ruled that "(t)he type of ancient way with which we are concerned seems to fit admirably the concept that the two ways had been laid out by the proper authorities of which no record exists. The evidence establishes that for at least 121 years there have been streets in their present locations, one of which connects two important thoroughfares. The area in question is still only sparsely settled, and the surface of the roads is atypical of a public way in Massachusetts. All other indicia, however, lead to the conclusion that both Tispaquin Street and Short Street where they adjoin the premises sought to be registered are public ways." The judge cited as authority for her ruling the cases of Commonwealth v. Coupe, supra; Longley v. Worcester, 304 Mass. 580, 586, 24 N.E.2d 533 (1939); and Carson v. Brady, 329 Mass. 36, 40-41, 106 N.E.2d 1 (1952). From the portion of the decree showing Tispaquin Street and Short Street to be public ways, the town took this appeal.

In general, it may be said that an existing way in a city or town in this Commonwealth is not a "public" way that is, one which a city or town has a duty to maintain free from defects (see G.L. c. 84, §§ 1, 15, 22; First National Bank of Woburn v. Woburn, 192 Mass. 220, 222-223, 78 N.E. 307 (1906)) unless it has become public in character in one of three ways: (1) a laying out by public authority in the manner prescribed by statute (see G.L. c. 82, §§ 1-32); (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal (see Longley v. Worcester, 304 Mass. at 587-589, 24 N.E.2d 533; Uliasz v. Gillette, 357 Mass. at 104, 256 N.E.2d 290), coupled with an express or implied acceptance by the public. Because the 1846 statute put an end to the creation thereafter of public ways by dedication and acceptance (Loriol v. Keene, 343 Mass. 358, 361, 179 N.E.2d 223 (1961)), it has only been possible since that time to create a public way by a laying out in the statutory manner or by prescription.

There was no evidence that Short Street or the portion of Tispaquin Street in the vicinity of the Fenns' land had been laid out by public authority, and there was no evidence that those ways had been dedicated to public use and accepted as such, or even that they existed, prior to 1846. Nor was there any evidence of use by the public for the twenty-year prescriptive period, the only evidence bearing directly on use of the ways having been the testimony of Charles Fenn, whose knowledge encompassed a shorter period.

It is well settled that the creation of a public way by adverse use depends on a showing of "actual public use, general, uninterrupted, continued for (the prescriptive period)." Jennings v. Tisbury, 5 Gray at 74 (1855). Commonwealth v. Coupe, 128 Mass. at 65 (1880). White v. Boston Gear Works, Inc., 315 Mass. 496, 499, 53 N.E.2d 1 (1944). It is sometimes said that "to establish such a use the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguished the use relied on from a rightful use by those who have permissive right to travel over the private way." Bullukian v. Franklin, 248 Mass. 151, 155, 142 N.E. 804, 805 (1924). Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487, 490, 253 N.E.2d 335 (1969). To the same effect, see Harvey v Sandwich, 256 Mass. 379, 385, 152 N.E. 625 (1926); Gower v. Saugus, 315 Mass. 677, 681, 54 N.E.2d 53 (1944). Other cases indicate that the...

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