Opinion
16-P-1130
06-16-2017
Todd S. HOLBROOK v. TOWN OF HOPKINTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Todd S. Holbrook, appeals from the decision of a Superior Court judge on cross motions for summary judgment, rejecting Holbrook's claim that Rice Street in Hopkinton is a public way, and granting summary judgment to the town of Hopkinton (town). We affirm.
The plaintiff first argues that the judge erroneously struck portions of the declarations he submitted on the basis that they were hearsay, not based upon personal knowledge, or impermissible opinion. He has not provided us, however, with the declarations he contends were erroneously stricken or the motion to strike. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). We, therefore, are unable to address his argument. For similar reasons, we are unable to consider his references to a statement of facts in support of his motion for summary judgment.
To the extent that the parties have described or referenced them, we discern nothing in the arguments made which would alter the result reached here.
The plaintiff sought a declaration that Rice Street is a public way yet failed to join any of the other Rice Street abutters. When seeking a declaratory judgment, G. L. c. 231A, § 8, requires joinder of all parties who have "any interest which would be affected by the declaration." Harvey Payne, Inc. v. Slate Co., 342 Mass. 368, 370 (1961). If for no other reason, the judge correctly granted summary judgment for failure to join necessary parties.
Were we to reach the merits, the plaintiff would fare no better. "We review a grant of summary judgment de novo." Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Id. at 253, quoting from Twomey v. Middleborough, 468 Mass. 260, 267 (2014). Although there are three mechanisms by which a way may acquire "public way" status, Holbrook's sole claim is that Rice Street has acquired public way status by prescription. "[T]he creation of a public way by adverse use depends on a showing of ‘actual public use, general, uninterrupted, continued for [the prescriptive period].’ " Fenn v. Middleborough, 7 Mass. App. Ct. 80, 84 (1979), quoting from Jennings v. Tisbury, 5 Gray 73, 74 (1855). "[A] claimant may be entitled to a prescriptive easement respecting the land of another if it is shown by clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007).
The plaintiff points to the fact that Rice Street, although originally a dead end, was connected to Morse Lane in 1992 to show that the public use was prescriptive. After 1992, Rice Street provided access to the public way for the houses on Morse Lane and also was used as a cut-through by the general public from Morse Lane (which intersected with a public way) on one end and a public way on the other. Use by the general public, however, was occasional and there was no evidence that the Morse Lane residents who use Rice Street do not have either an express or implied easement over it. See Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487, 490 (1969). We agree with the town and the judge that the evidence did not distinguish use of Rice Street as a private way open to the public from use as a public way under a claim of right. See Gower v. Saugus, 315 Mass. 677, 681-682 (1944) ; Fenn, supra at 84-85.
Additionally, the temporary inclusion of Rice Street as a way for purposes of State funding for some period of years did not mean that Rice Street had acquired public way status by prescription as a matter of law. The inclusion was not continuous or adverse for twenty years, and the designation has been corrected by the town. There was some evidence that the town had maintained the road from time to time over the years. The residents had repaved it, however, and installed speed bumps. Article VI of the town by-laws allows for the repairing and repaving of private ways. The town asserted it provide snow and ice removal and annual street cleaning as a courtesy. Given that the by-laws allow such services for private ways, the town's conduct does not in these circumstances imply public way status.
The town provided the materials.
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For all of the foregoing reasons, we affirm the judgment. The appellee's request for costs and fees is denied.
So ordered.
Judgment affirmed.