The Massachusetts Appeals Court has solidly backed the town of West Tisbury in its ongoing effort to keep Rogers Path, an ancient way that leads to a Civil War-era cemetery in the North Tisbury section of town, open for public use.
In a ruling issued Tuesday, the state’s high court upheld a 2010 superior court decision that found the town has established what is known as a prescriptive easement through continuous public use for more than 20 years on Rogers Path. “The [lower court] judge’s careful and thorough findings adequately establish that the entire portion of Rogers Path was acquired by the town through prescription . . .” the appeals court wrote in part.
The town has been in court for years battling a group of neighbors who want to block public access to the path. The case has attracted widespread attention in legal and conservation circles around the commonwealth, and now stands as a clear victory for the many groups who have been working to protect the old byways that crisscross the Island like so many strands of history.
“This is a precedent-setting case, not just on the Vineyard but throughout rural communities in Massachusetts,” said West Tisbury town counsel Ronald H. Rappaport yesterday.
“There are a lot of, quote, unquote ancient ways on the Vineyard and the issue of whether there are public rights in those roads is consistently in the public dialogue. And on this road, both the superior and the appeals court have plainly said that the public has rights to use the road,” the town attorney said.
Prescriptive easement is notoriously difficult to prove in court — in legal terms the town had to prove not only that there had been continuous public use of the road through the years, but also that there had been “corporate action,” in this instance meaning that the town had been involved in keeping the road maintained and open. The corporate action portion of the case was the sole issue before the appeals court, which decided in the end, under what is known as rule 128, that the appeal presented no substantive issues of law.
Once a cart path that connected Middletown and Christiantown, Rogers Path also leads to an old cemetery where some of the headstones date back to the Civil War. The path is about a mile long; roughly half of it provides access to private homes, while the rest is a grassy track through the woods. A portion of the path is also sometimes called Burying Ground Road.
In November 2001 the town signed a management agreement with the Martha’s Vineyard Land Bank to take care of Rogers Path. A short time later the group of neighbors sued to block access to the path. The dispute included an incident when one of the suing neighbors scooped up a land bank worker in the bucket of his tractor and police were called.
At a superior court trial in October 2007, many longtime Islanders testified about their use of the path through the years, which included horseback riding, flower gathering and regular access by town workers to the old cemetery for mowing and maintenance. The case included many complicated legal issues involving title. One key issue centered on the fact that from 1928 until the present, the town had appropriated money to take care of the cemetery and the road that leads to it. “There are veterans of various wars, including the Civil War, buried there, and this made it especially important that pubic rights of access be maintained,” Mr. Rappaport said.
“What began as a cart way became a path, then a lane, then a road,” wrote the Hon. C. Brian McDonald in the January 2010 lower court ruling upholding the town.
Arguments were held in January of this year on the appeal.
Yesterday West Tisbury selectman Cynthia Mitchell also hailed the ruling as a victory for the town.
“I was a member of the board of selectmen at the time the town signed the agreement with the land bank for Rogers Path, and I believed then and still very much believe now that public rights and ancient ways should be preserved,” Mrs. Mitchell said. “I am very pleased that the court sided with the town to protect this path and ensure access for the enjoyment of the public and future generations.”
The plaintiffs in the case are Robert and Tracy Smith, Scott Bermudes, Cynthia Cornwall, Mark and Kimberly Baumhofer and Alex and Laura Alexander. They were represented by Brian Hurley, an attorney with Rackemann, Sawyer and Brewster in Boston, and Daniel Larkosh, a West Tisbury attorney. Mr. Hurley could not be reached for comment at press time yesterday.