Opinion
18-P-984
09-13-2019
Janine M. DOMINA & others, trustees, v. PLANNING BOARD OF WESTFIELD & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, a Land Court judge entered a declaratory judgment in favor of the plaintiffs, declaring that in 1816, the town of Westfield laid out a public way running easterly from Route 10 to at least Old Stage Road along the boundary line between Westfield and the town of Southampton. The judge further declared that the public way has never been discontinued and is an existing public way in Westfield. On appeal, the defendants contend the plaintiffs did not sustain their burden of proving that this public way extends all the way to Old Stage Road and that it, instead, terminates before Old Stage Road at Old County Road. We affirm.
Westfield was established as a town in 1669 and as a city in 1920.
Discussion. "[W]e accept the judge's findings of fact unless they are clearly erroneous." U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427 (2014). According to the records of a town meeting held on November 4, 1816, Westfield voted to accept a report of the selectmen "laying out a road" running along the Westfield and Southampton boundary and terminating at the intersection with another road leading from Westfield to Northampton by the property of Elijah Clapp. The plaintiffs' expert witness, professional land surveyor Emily B. Holmberg, testified that in 1816, Elijah Clapp owned land near the intersection of the Westfield-Southampton town line and Old Stage Road, and that Old Stage Road was a county road that would have crossed town lines. Holmberg further testified that the terminus of the public way could not have been Old County Road because it did not cross town lines and did not run all the way to Northampton. Holmberg thus opined that the terminus of the public way described in the November 4 records was Old Stage Road. The trial judge credited Holmberg's testimony and noted additional factors that he concluded made it unlikely that Old County Road was the "road to Northampton" referred to in the 1816 layout. "Considering all of the evidence," the judge concluded the easterly bound of the public way was at least as far as Old Stage Road.
Citing Commonwealth v. Pugh, 462 Mass. 482, 495 (2012), the defendants argue that we should not defer to the judge's findings because the judge's decision is based primarily on interpretation of a number of exhibits. The defendants misconstrue Pugh, which calls for abandoning the deference to the judge's credibility determinations only when the judge's findings are based "solely on documentary evidence." Id. at 495. Here, unlike in Pugh, the findings of fact in question are based at least in part on the judge's assessment of the credibility of the parties' expert surveyors' testimony.
The specific description of the layout contained in the November 4 records is of a road "on [the] Southampton line beginning at the road leading from Joseph Carrier[']s house to Southampton on the line between Westfield & Southampton running east on said line to Moose Brook ... & from thence ten rods to a stake & stones six rods wide, & from thence two rods wide to the road that leads from Westfield to Northampton on the line between Westfield & Southampton by Elijah claps."
The defendants seek to refute the judge's conclusions in two ways. First, they rely on their expert's opinion that the correct interpretation of the description contained in the 1816 layout is that the road described stops at Old County Road because, in part, Elijah Clapp also owned property west of Old County Road. The defendants further point to other evidence that their expert relied on in forming his opinion. However, as noted above, the plaintiffs' expert disagreed and opined that the terminus was Old Stage Road. Her opinion also was supported by evidence. "[W]here testimony from various experts is conflicting, it is for the trier of fact to determine which expert's testimony to accept, if any" (quotation omitted). Commonwealth v. Husband, 82 Mass. App. Ct. 1, 10 (2012). Here, where there was evidence to support the opinions of both experts, we leave this question of credibility to the discretion of the trial judge. See North Adams Apartments Ltd. Partnership v. North Adams, 78 Mass. App. Ct. 602, 607 (2011).
Second, the defendants contend that there is no physical evidence of the public way east of Old County Road. Because even "[n]on-use or apparent abandonment of a public way by a town does not result in a discontinuance of the public status of the way," whether the public way ever physically ran east of Old County Road is irrelevant to the determination of where the town's layout terminates. Martin v. Building Inspector of Freetown, 38 Mass. App. Ct. 509, 511 (1995). We discern no error in the trial judge's finding that the public way terminates at Old Stage Road.
The defendants further argue that in a prior lawsuit, the plaintiffs described at least some portion of the disputed public way as a private right of way. To the extent the defendants urge us to apply the equitable principle of judicial estoppel, where the defendants do not argue that the plaintiffs secured a favorable decision in the first lawsuit based on their description of the public way as a private right of way, we decline to apply the principle. See Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 641 (2005).
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Judgment affirmed.