A group of neighbors is appealing a recent superior court decision that Rogers Path in West Tisbury — an ancient way once used by Wampanoags and as a cart path by English colonials — must remain open for public use.
The appeal was filed in Edgartown superior court on Feb. 16 by the same residents who sued the town in 2007 to block public access. The long-running dispute was marked by an incident early on when one of the neighbors scooped up a land bank worker in the bucket of his tractor and police were called. In November of 2001 the town signed a management agreement with the Martha’s Vineyard Land Bank to maintain the path.
The plaintiffs in the appeal are Robert and Tracy Smith, Scott Bermudes, Cynthia Cornwall, Mark and Kimberly Baumhofer, and Alex and Laura Alexander. They are represented by Brian M. Hurley, an attorney with Rackemann, Sawyer and Brewster in Boston, and Daniel J. Larkosh, an attorney from West Tisbury.
The two-page appeal challenges the Jan. 28 decision by the Hon. C. Brian McDonald, associate justice, that the ancient way must remain open for public use. Mr. Larkosh said the appeal will challenge whether the town can effectively convert an easement into something that resembles more of a public park.
“The question is whether the town can turn an easement into a public park. Our clients never really wanted to stop people from walking on the path, they wanted to stop the path from being turned into something very different. When the land bank got involved, the fear was the path would be trimmed, widened, put on maps,” Mr. Larkosh said.
Mr. Larkosh said his clients were challenging the town’s decision to sign an agreement with the land bank, which elevated the profile of the path. “We might see a situation where parking is added and signs are put up, and we are no longer looking at a simple path,” he said.
Town administrator Jen Rand this week said the appeal does not carry an injunction that would prevent the public from using the path in the meantime. “My understanding is that public access will be maintained while the appeal is heard,” she said.
The neighbors sued the town, and a trial was held in October of 2007 in Dukes County Superior Court during which many longtime Islanders testified about their use of the path over the years, which included horseback riding, flower gathering and regular access by town workers to the old cemetery for mowing and maintenance.
In his decision, Judge McDonald said the old path, which once connected Middletown and Christiantown, as well as a small cemetery with headstones that date back to the Civil War, should remain part of the public domain.
The case involved complicated legal issues relating to title, and in the end Judge McDonald found that the town had established what is termed a prescriptive easement through continuous public use for more than 20 years. A key point in the case 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.
Land bank executive director James Lengyel said yesterday he could not discuss the legal appeal, but did point out the land bank has incorporated Rogers Path into its normal schedule, and work will soon begin to make sure it remains passable for hikers and other non-motorized uses.
Mr. Lengyel also provided a recently completed copy of the land management agreement for the path. Among other things the agreement states that the land bank will maintain the trail to a width of no greater than six feet unless otherwise authorized by the town. Under this agreement the land bank will also have the right to trim, cut, clear and remove outgrowths of brush, other vegetation and other obstructions, which might necessitate the use of some power equipment or motorized vehicles.
The agreement also states the land bank, not the town, bears all expenses associated with maintaining or improving the path. The land bank also agrees to take on any liabilities.
No court date had been set as of this week.
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