Abutters plan to appeal decision
Land Court Judge Howard P. Speicher has sided with the town of Concord, finding in his Nov. 23, decision that the public does have the right to access a disputed portion of Estabrook Road.
“I find and rule that the Town has carried its burden of establishing that both the northern and southern disputed portions of Estabrook Road were established as a public way, and that the order of the Middlesex county commissioners in 1932 ‘adjudicating’ Estabrook Road to be a private way did not extinguish the right of the public to access and use Estabrook Road,” ruled Speicher in his 85-page decision in the case of Town of Concord v. Rasmussen, Neil, et al.
The judge’s ruling ends a five-year lawsuit in Massachusetts Land Court between the Town of Concord and abutters on Estabrook Road who claim the road is their own private property. The town has spent $1.59 million on the lawsuit, filed on October 24, 2017.
At the heart of this litigation is whether the public has access to the unpaved section of Estabrook Road that runs from the Concord/Carlisle town line south 1.8 miles (through Estabrook Woods) to the gate near the driveway of Neil and Anna Rasmussen at 393 Estabrook Road.
While “the Town does not anticipate commenting on this decision until it’s had time to review it in detail with Town Counsel,” Town Manager Kerry Lafleur wrote in an email on Sunday afternoon, the abutters have indicated they will appeal.
“The decision rests on novel legal theories and multiple unsupported inferences to find that a path described by Thoreau as ‘not accepted by the town and the traveling world’ was, instead, once a public thoroughfare. And it has implications for countless properties on ancient paths throughout the Commonwealth, including many in Concord. We will appeal,” M. Patrick Moore, Jr., attorney for the Rasmussens, wrote in an email.
Also appealing the decision are Brooks S. Read and Susannah Kay, who live at 366 Estabrook Road. “We believe the court’s unprecedented decision is legally wrong and we intend to appeal,” said Read.
The plaintiff in the lawsuit is the Town of Concord. The defendants are the Rasmussens, Read, Kay; Russell Robb III and Leslee Robb, and Thomas Wray Falwell, Trustees of the Pippin Tree Land Trust; president and fellows of Harvard College; John K. Baker, trustee of the Nielsen Realty Trust; and Nina I.M. Nielsen, Trustee of the Baker Realty Trust. Baker and Nielsen were dismissed at an earlier date from the lawsuit.
A Public Way by Prescription
Judge Speicher determined that the disputed sections of Estabrook Road were established as a public way by prescription.
“Generally, establishment of a public way by prescription may be shown by evidence that members of the community have used the disputed roadway, and that the town has maintained the roadway to provide for such use, continuously for more than twenty years,“ he wrote.
A Statutory Private Way with Public Access
Judge Speicher found that while the Middlesex County Commissioners discontinued the road in 1932, that action had ended the “Town’s obligation to maintain Estabrook Road, but not the public’s right to access and use it.”
The Locked Gates
On April 5, 2020, during the pandemic lockdown, citing increased use of the road where it abuts their properties, the Rasmussens and Read and Kay “unilaterally locked two gates closing off a section of Estabrook Road adjacent to their properties, which the Town claimed was public,” wrote Judge Speicher. “They posted a sign announcing that this section of Estabrook Road was private and was closed by ‘order of the County Commissioners.’ This was apparently a misleading reference to an order … that had been made 88 years earlier in 1932.”
Concord’s Canon of Saints Invoked
Judge Speicher invoked Concord’s saints of literature and natural history — including Henry David Thoreau, Ellen Tucker Emerson, William Brewster, and Edwin Bacon — to show Estabrook Road was travelled into the 19th and 20th centuries.
“There is no suggestion in the writings of Thoreau, Emerson, Bacon, or Brewster that they sought or were granted permission by any abutting landowners for their rides or strolls on the Estabrook Road. Ellen Tucker Emerson’s journal notes that she went through a gate, but gives no indication that it was locked or restricted entry in any way,” the judge wrote.