Town of Boxborough v. Joatham Spring Realty Trust

Decision Date05 December 1969
Citation356 Mass. 487,253 N.E.2d 335
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Julian J. D'Agostine, West Acton, for Barbara A. Sweeney (Charles R. Parrott, Boston, for Joatham Spring Realty Trust, with him).

No argument or brief for plaintiff.


REARDON, Justice.

This is a bill for a declaratory decree brought by the town of Boxborough (town) to determine the rights, if any, of the public to the use of a way running over land of the Joatham Spring Realty Trust (appellee) to the land of Barbara A. Sweeney (appellant). The matter was referred to a master who filed a report to which the appellant (who had been substituted for an original party as successor in title) filed an objection on the grounds that the master's subsidiary findings of fact compelled the conclusion that the way was a public way by prescription and that there was no finding 'as to the ratio of public to private use' of the way. While the record is silent on whether the appellant complied with Rule 90 of the Superior Court (1954) relative to a request for a summary of evidence, the master did file such a summary dealing with the ratio of public to private use of the way. The master's report was confirmed and a final decree based thereon was entered which adjudged that no part of the way in question was a public way but that a right of way for the benefit of the appellant for residential and farming purposes did exist across the land of the appellee. The appellant appealed from the final decree.

The master found that the appellee owned a parcel of land in Boxborough situated on the northerly side of Whitcomb Road, a public way. In the deed to the appellee's predecessors in title appeared the language, 'said premises are conveyed subject to any rights of the public in the road known as Joatham Road.' The deed to the appellant's predecessors in title conveyed two lots, one of which was described as being located 'on the West side of the so-called * * * (Joatham Road).' On a view the master found a well defined way running north from Whitcomb Road through the appellee's land for approximately 1,240 feet to the southerly line of the appellant's land. This way is about eleven feet in width, has a hard gravel surface with five telephone poles along its side line, and ends in a small circular turnabout area at the southerly end of the appellant's land. Save for the references above no deed in evidence contained any other mention of Joatham Road whatever. The only available access to the appellant's land was through the land of the appellee and such access 'is reasonably necessary.' There was no evidence that the parcels of land belonging to the appellant and the appellee were ever in a common ownership. From 1940 through 1961 the town listed a Clarke Road as a public way. Clarke Road is also known as Joatham Road. During the same period the town plowed snow on the way, scraped the way every other year and 'occasionally cut or sprayed the brush' along its length. Few members of the public used the way and then only for purposes of visiting a spring located beyond the appellant's land, hauling wood from back land or occasionally hunting. A house on the appellant's land has been in existence for over thirty years and over the years various owners of the appellant's land or occupants of the house have employed the way as a means of ingress to and egress from the land 'in the manner in which ways are commonly used for residential and farming purposes.' This use has...

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13 cases
  • Newburyport Redevelopment Authority v. Com.
    • United States
    • Appeals Court of Massachusetts
    • November 8, 1979
    ...for more than twenty years does not in itself raise a presumption that such use was adverse." 12 Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487, 490, 253 N.E.2d 335, 337 (1969). The evidence of the use of ways 2, 9 and 10 to reach the waterfront for recreational purposes shows at ......
  • Whaler Motor Inn, Inc. v. Parsons
    • United States
    • Appeals Court of Massachusetts
    • December 29, 1975
    ...merit. Albre Marble & Tile Co., Inc. v. Goverman, 353 Mass. 546, 547, 233 N.E.2d 533 (1968); Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487, 489, and n. 1, 253 N.E.2d 335 (1969). Mottla, Civil Practice, § 1133 (3d ed. The master made no finding that there was any intention on the ......
  • Com. v. Leo
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 21, 1979
    ... ... only the adult who had abused a position of trust as the complainant's counselor or adviser. See ... ...
  • Fenn v. Town of Middleborough
    • United States
    • Appeals Court of Massachusetts
    • February 26, 1979 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, 3......
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