Scott Bermudes jealously guards his privacy.
So back on Nov. 27, 2001, when he got word that a land bank employee was coming to mow the old path which runs through his block in West Tisbury, he went down to order them off, as he had done with others who wandered across his land on the path.
As he told the superior court in Edgartown this week, he went down in his Bobcat earth mover and confronted them, raising the bucket of the tractor over the mower, then pushed rocks in the path and called the police.
So began yet another case exploring the arcane history and legal complexities of private property and public use of one of the old paths which crisscross Martha’s Vineyard.
According to Mr. Bermudes and several of his neighbors, including Alex Alexander, Robert C. Smith and Mark Baumhofer, the town had no right to enter into an agreement with the Land Bank to maintain the path, now known as Rogers Path, because the town had taken no rights over the path. They also sought damages from the town for allowing people to trespass on their property.
And there is no doubt it is their property; 60 acres bought in 1995, then divided up into five lots.
Mr. Baumhofer, who bought and subdivided the land, told the court he was aware when he bought the land that there was a special way which wandered across it. He knew he could not build on it. But, he said, the town raised no objection during the planning process to the siting of a cul-de-sac on top of the old path.
Nor, he and the other plaintiffs said, did the town ever do anything about maintaining the path prior to its agreement with the Land Bank. It was just a narrow track, overgrown and seldom used except by a few neighbors.
But the town and land bank contend there also exists a historical right for public use of the path, established over hundreds of years. The problem was proving, given the scratchy records of these things in those times, that the road had been sufficiently used over a sufficiently long period to establish public rights.
And what a fascinating trip down memory lane that led to, as some of the Island’s oldest-established residents were called on to detail their knowledge of the use of the old cart path.
Central to the defense case is the existence of a cemetery, to which Rogers Path provided access.
John Alley, selectman for 27 years until 2003, cemetery commissioner for 25 years to 2003, and still cemetery superintendent responsible for all three town cemeteries, recalled that back in the 1950s, when he was still a teenager, he was engaged by his late uncle Alfred to mow the grass in the cemetery.
This he did about four times a year, from 1959 to 1963, driving in one end of the road, which he said ran from State Road and ended near the four corners on Indian Hill Road, and out the other. He was paid $3 a time for his work.
There were about 225 tombstones in the cemetery, Mr. Alley said, dating from before 1800 to 1970. As town clerk from 1977 to 1996, he oversaw preparation of town reports. Those reports included expenses for the upkeep of the cemetery for nearly 100 years.
Mr. Alley could not say the town spent money improving the road, however, as the town’s counsel, Ronald H. Rappaport argued at one point, if the town had an interest in maintaining the cemetery, it also had an interest in the road, given that people were not getting to and from the graveyard “by helicopter.”
Mr. Rappaport had assembled a collection of the Island’s longest memories to testify. Some were denied the chance by Judge C. Brian McDonald, but enough were allowed to give a clear account of regular, if never heavy use of the path over many decades.
Barbara Maciel, for example, said she also helped her father when he maintained the cemetery and used the path. She said her mother Hannah Vincent was employed by the Rogers family and worked for them for about 11 years until 1958, walking or driving Rogers Path between two and five times a week through that period. Her father drove his tractor along the path to maintain the cemetery and to do other jobs.
She had accompanied her father “hundreds of times,” she said.
She also rode horses and walked it with her mother to see her aunt or gather flowers. She never thought it necessary to get permission from anyone to use the path.
But was the path used by these people the same one now identified as Rogers Path? The track of which they spoke had been known by other names, and land boundaries in the old days often were recorded by reference to landmarks which might no longer exist.
Robert McCarron, an Edgartown attorney produced by the town as a property expert, cited his examination of old deeds to establish where the path ran.
He located a deed from 1826, referring to the old cartway — it was old, apparently, even then. An 1878 deed described a road from Christiantown to Middletown. Deeds to land either side of the cemetery recorded the path. So did a 100-year-old land atlas of the Massachusetts Land Court.
There was seemingly endless, detailed cross-examination of his evidence, but he remained certain.
“It is my opinion the cart path shown on these documents is the path known as Rogers Path,” he said.
On Monday, the court will go on a site visit, to see the area, before final submissions from the two sides.