When is a Public Way Discontinued?

The Supreme Judicial Court issued an important decision regarding the discontinuance of public ways in the case of Town of Concord v. Rasmussen, which involves a long running dispute over whether a disused roadway known as Estabrook Road remains open to public access and travel today. The decision, which recalls New England history reciting the writings of Henry David Thoreau and Ellen Tucker Emerson, describes the long history of the disputed roadway and clarifies the application of a rather seldom used statute, G.L. c. 82, §32A, which permits a city or town to discontinue maintenance of a public way but not affect the public’s right of access. Section 32A permits a municipality, after a hearing, to cease maintenance of a public way provided that notice is posted warning the public that the way is no longer maintained. The notice “is designed to protect the town from liability, not prevent public access.”  

In this case, some of the confusion was due to the antiquated language found in the statute at the time regular maintenance of a portion Estabrook Road was discontinued in 1932. At that time Section 32A provided for an adjudication “that said way shall thereafter be a private way and that the town shall no longer be bound to keep the same in repair….” As the Court explains, private way has been used with varying meanings since colonial times, frequently referring to a way which is private in name only, but is in all other respects open to the public. Evaluating the usage of the term private way in the context of the statute applicable at the time and subsequent amendments which have removed the confusing reference, the Court found that a 1932 adjudication to cease maintenance had no effect on the public's continuing right to make use of Estabrook Road to this day. 

Ancient ways and their public status are frequently a source of friction between private abutters, the municipality, and the public. This case serves as a reminder that in many cases the laws of the Commonwealth must be read carefully with an awareness of the context in which they were enacted. It also reinforces the general rule that the right of the public to make use of a roadway cannot be discontinued without legislative action by town meeting or city council.