In a recent decision, the Massachusetts Supreme Judicial Court concluded that a so-called “private way” in Concord, Massachusetts, was not private at all, and that the public enjoys a right of access to the way even though the Town of Concord successfully petitioned to terminate its obligation to maintain the road nearly 100 years ago.

The Court concluded that the decision by the County Commissioners in 1932 under M.G.L. c. 82, § 32A removed the Town of Concord’s maintenance duties, but did not eliminate the public’s right to travel the road.

A copy of the decision is available here: Town of Concord v. Rasmussen, SJC-13721 (Aug. 15, 2025)

Background

The road in dispute, Estabrook Road, was laid out in two parts: a northern section laid out in 1763 and an earlier completed southern section to which the northern section connected. The lawsuit, commenced by abutters to Estabrook Road, concerned public access to the northern section of the Road.

From Colonial times through the early 20th century, evidence of public and commercial use of Estabrook Road—including timber and limestone hauling—confirmed both the existence of the road and its openness to the public. Although official records for portions of the road were lost to time, the Court was able to confirm the road’s existence through, among other things, the writings of no less than Henry David Thoreau and Ellen Tucker Emerson, daughter of Ralph Waldo Emerson. In his journal, Thoreau described Estabrook Road as “a paradise for walkers in the fall.” Ms. Emerson similarly wrote in 1886 that picnicking along the road was “the greatest pleasure imaginable.”

However, in 1932, after Estabrook Way had apparently ceased to be in general public use, the Middlesex County Commissioners granted the Town of Concord’s petition to discontinue maintenance of the way under M.G.L. c. 82, § 32A, declaring that “said way [should] [t]hereafter be a private way, and that the town [should] no longer be bound to keep the same in repair,” provided that “sufficient notices to warn the public against entering on said way [were] posted.”

In reliance on this nearly century old decision, in 2020, abutters to Estabrook Road—citing safety concerns and increased usage of the road by the public during COVID lockdowns—attempted to block public access by erecting gates and declaring the Road to be private. The Town responded by filing suit against the abutters seeking a declaration that the public continued to have a right of access to Estabrook Road despite the County Commissioners’ 1932 decision terminating the Town’s obligation to maintain Estabrook Road as a public way. After a six-day trial, the Land Court agreed with the Town of Concord and the Supreme Judicial Court ultimately affirmed the Land Court’s Decision.

In the right circumstances, “private” can mean “public”

The Court concluded that the decision by the County Commissioners in 1932 under M.G.L. c. 82, § 32A removed the Town of Concord’s maintenance duties, but did not eliminate the public’s right to travel the road. Although the County Commissioners declared Estabrook Road to be a private way, the Court, in reliance on historic precedent, counterintuitively determined that the term “private way” was not private at all in the modern sense of the word. “Although the words ‘private ways’ may occasionally be used in the statutes with a different meaning, . . . they commonly mean ways of a special type laid out by public authority for the use of the public. Such ‘private ways’ are private only in name, but are in all other respects public.” Opinion of the Justices, 313 Mass. 779, 782 (1943).

Based on the historical meaning of “private way,” the SJC concluded that the 1932 order of the County Commissioners did not terminate public access to Estabrook Road. Accordingly, the Court concluded that the abutters to Estabrook Road did not have the right to close the road to public use.

Why It Matters

This decision reaffirms that public rights of way can survive the passage of time, changes in use, and even the loss of official records. Moreover, it serves as a reminder that evidence of how land has historically been used in Massachusetts can be found in unusual places, including the journal entries of some of our country’s most beloved authors. Finally, it clarifies that a § 32A adjudication—designed to relieve a town from maintenance burdens—does not terminate the public’s right to use the way (which would require a town vote under M.G.L. c. 82, § 21).

MBM Involvement

Principal Heather Gamache submitted an amicus brief for the Massachusetts Association of Land Surveyors and Civil Engineers.

In his role as Co-Chair of the Real Estate Bar Association’s Amicus Committee, Principal Thomas Moriarty oversaw the submission of an amicus brief drafted by Nicholas P. Shapiro, Joseph F. Konopka, and Miranda P. Cecil on behalf of the Real Estate Bar Association for Massachusetts, Inc. and The Abstract Club.