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15-P-50                                                Appeals Court

     ROBERT J. ERICKSON      vs.   CLANCY REALTY TRUST & others.1


                              No. 15-P-50.

        Barnstable.      November 12, 2015. - January 6, 2016.

            Present:    Cohen, Grainger, & Wolohojian, JJ.


              Way, Public:    discontinuance.   Estoppel.



     Civil action commenced in the Superior Court Department on
March 5, 2010.

    The case was heard by Christopher J. Muse, J.


    James B. Stinson for the plaintiff.
    Harry R. Thomasson for the defendants.


    GRAINGER J.       Plaintiff Robert J. Erickson appeals from a

declaratory judgment in Superior Court finding that Old County

Road (road) in Eastham was discontinued by a 1903 Superior Court

decree pursuant to "An Act To Promote The Abolition Of Grade

Crossings," Chapter 428 of the Acts of 1890, as amended,

St. 1891, c. 123 (act).      The defendants are abutters or nearby

    1
        David R. Poitras, Deborah R. Sverid, and Scott R. Sverid.
                                                                      2


landowners in Eastham.     On appeal, the plaintiff argues that the

road was not discontinued by the 1903 Superior Court decree and

that it still operates as a public way.

    1.    Background.    The facts are uncontested.   The

plaintiff's property is a parcel bounded on the northwest by the

road, which extends from Route 6, a State highway, to an area

past the plaintiff's property.     The Cape Cod Rail Trail,

formerly the New York, New Haven & Hartford Railroad (railroad),

lies to the east of the plaintiff's property, and to the south

are parcels owned by the Sverids.     The plaintiff claims that the

road is the only means of accessing his property; otherwise, it

is landlocked.

    The road was first laid out as a public way on June 19,

1721.    It is shown on various maps throughout the eighteenth and

nineteenth centuries.    The path of the road crossed over to the

eastern side of the railroad in Eastham, and crossed back to the

western side of the railroad in Wellfleet -- a total of two

grade crossings.   In 1890, the act was passed to promote the

abolition of such grade crossings and authorized the Superior

Court, by decree, to confirm a recommendation by a neutral

commission to extinguish a specified portion of an existing

public way and to establish an alternate route that avoided any

grade crossings.    See St. 1890, c. 428, § 4.   The parties agree
                                                                     3


that the commission's report and a subsequent Superior Court

decree2 (decree) did so.

     2.   Discussion.   The question presented is whether the road

in its entirety, or only segments thereof, were discontinued.

The plaintiff argues that the language of the decree

discontinued only portions of the road that actually crossed the

railroad, leaving other portions as disconnected internal

segments that terminated at each crossing.   The trial judge

disagreed, and we review his decision as to questions of law,

and questions of fact based entirely on documents, de novo.3    See

Zaskey v. Whately, 61 Mass. App. Ct. 609, 614 (2004).

     a.   The decree.   We look first to the language of the

petition and the decree.   The petition is phrased in the

disjunctive:   "petitioners are of the opinion that it is

     2
       The decree found it necessary to discontinue the road
"where it crosses the location of the railroad at grade about
twenty three hundred feet (2300) northerly of the North Eastham
passenger station in the town of Eastham," "where it crosses the
location of the railroad at grade about fifty-five hundred
(5500) feet southerly of the South Wellfleet passenger station
in the town of Wellfleet," and where it crosses "the railroad
location at grade about sixty-nine hundred (6900) feet southerly
of the South-Wellfleet passenger station in the town of
Wellfleet." The 1903 decree further established "a new highway
forty (40) feet in width . . . to be constructed in the towns of
Eastham and Wellfleet, westerly of the railroad location" "[a]s
a substitute for the aforesaid crossings at grade." (Emphasis
supplied.)
     3
       Judgment was made following a bench trial limited to the
following issues: (1) whether the 1903 decree discontinued the
portion of the road leading up to the plaintiff's property, and
(2) whether estoppel by deed is applicable.
                                                                     4


necessary . . . that an alteration should be made in such

crossings, in the approaches thereto, in the location of the

public ways, or in the grades thereof" (emphasis supplied).

Such language shows that the petitioners contemplated, at least

as one possibility, the alteration or discontinuance of only the

grade crossings.

    Turning to the act itself, it provides that if "any portion

of an existing public way should be discontinued [the

commission] shall so specify" (emphasis supplied).    St. 1890,

c. 428, § 4.   Finally, the clear language of the decree

specifies only that the grade crossings are discontinued:     "the

county road where it crosses the location of the railroad at

grade . . . [is] discontinued" (emphasis supplied).   Compare

with Bliss v. Inhabitants of Attleborough, 200 Mass. 227, 231

(1908) ("The commissioners . . . expressly provided in their

report for many discontinuances . . . [as seen in the] statement

that 'the way known as Starkey Avenue is hereby discontinued'").

Further, the commission described the new highway to be a

substitute "for the aforesaid crossings at grade," and did not

address the road in its entirety.   We conclude that the trial

judge erred in declaring as a matter of law that the language of

the decree expressly discontinued portions of the road other

than the grade crossings.
                                                                       5


    As a general rule, in the absence of an express

discontinuance, a road is not discontinued by implication.

"Once duly laid out, a public way continues to be such until

legally discontinued."   Carmel v. Baillargeon, 21 Mass. App. Ct.

426, 428 (1986), citing Preston v. Newton, 213 Mass. 483, 485

(1913).   The town of Eastham has undertaken no official action

to discontinue the road, such as holding a public hearing.       See

G. L. c. 82, § 21.

    These conclusions, however, do not eliminate every

possibility of discontinuation of the road as a whole.      We

cannot simply ignore that the strict application of the express

language of the decree creates surviving segments of

disconnected road that run between the discontinued grade

crossings, serving no apparent remaining use.   Our cases

recognize that it is appropriate to rely on extrinsic evidence

where a literal statutory construction yields an absurd or

unworkable result.   See, e.g., North Shore Realty Trust v.

Commonwealth, 434 Mass. 109, 112 (2001), quoting from Champigny

v. Commonwealth, 422 Mass. 249, 251 (1996) (declining to "adopt

a literal construction of a statute if the consequences of such

construction are absurd or unreasonable").   See Attorney Gen. v.

School Comm. of Essex, 387 Mass. 326, 336 (1982) (literal

meaning of statute relating to private school pupils' right to
                                                                       6


public transport would require town to subsidize travel to any

location in United States).

    Moreover, the Supreme Judicial Court has recognized that

even "without express words to that effect," the creation of a

substitute to an existing road, i.e., "an alteration of a way by

the construction of it in a different place, where it will serve

all the purposes for which it was designed or used," will

discontinue "that part of it not included in the new location."

Commonwealth v. Boston & Albany R.R., 150 Mass. 174, 176 (1889).

This language requires factual determinations, namely findings

related to "all the purposes" for which the original road "was

designed or used."      Ibid.   Boston & Albany R.R. also recognizes

the need for additional factual inquiry, namely, the effect of

the contemplated discontinuance on adjacent landowners,

landowners in the vicinity, and on the public.       Id. at 177.

This effect is to be measured at the time of the decree and not

thereafter.   "[W]hat occurred after the change was made [is] of

little significance . . . .      These facts are competent only so

far as they tend to show the nature and condition of the subject

matter under consideration at the time the adjudication was

made."   Id. at 176.4


    4
       The instant case differs in its particulars from
Commonwealth v. Boston & Albany R.R., supra, where the petition
did not target specific locations but, rather, was aimed at
alteration to the "hilly and rough" road. Id. at 176-177. We
                                                                      7


     Factual determinations were not made here as a consequence

of the judge's reliance on the statutory language alone as

sufficient to discontinue the entire road.     In light of our

contrary reading, while confronted with the anomalous creation

of freestanding sections of remaining road, we conclude that

further proceedings are required to resolve the issue of

discontinuation by implication.5

     b.   Estoppel by deed.   We turn next to the defendants'

assertion that the doctrine of estoppel by deed bars the

plaintiff from his claim in this action.     Estoppel by deed

prevents an assertion of title to property previously assigned

to another.   See Gibbs v. Thayer, 6 Cush. 30, 32-33 (1850).     We

observe as an initial matter that the plaintiff acquired his

property many decades after the decree of 1903.     See Makepeace

Bros. v. Barnstable, 292 Mass. 518, 524 (1935) ("The

respondent's claim . . . is not strengthened by any theory of

estoppel by deed, since the respondent was neither party nor


are instructed however by that decision in the appropriate
avenues of inquiry to be applied in this and similar cases where
we are faced with an overtly anomalous result.
     5
       Implication may be derived from many rational bases, and
we do not intend to imply that the judge is limited on remand to
evidence falling within the strict limits outlined above. As an
example, we note that the plaintiff's property itself is not
located on one of the internally disconnected segments between
grade crossings. Similarly, we express no opinion on the
existence of an easement by necessity, providing the plaintiff
an alternate route to a public way. See, e.g., Flax v. Smith,
20 Mass. App. Ct. 149, 152 (1985).
                                                                    8


privy to such deeds but is in the position of a stranger

thereto").   Neither the plaintiff nor his predecessors in title

can properly be characterized as transferors in connection with

the act and the decree.   Accordingly, the circumstances normally

triggering the invocation of this principle are absent here.

     However, the defendants point to a deed executed by the

plaintiff in connection with his transfer of an adjoining parcel

in 1979:

     "NORTHWESTERLY by land of Joseph A. and Norman J. Poitras
     and by land of James T. and Gertrude A. Clancy, being the
     middle line of Old County Road, as formerly laid out, now
     discontinued, six hundred eighty-two and 74/100 (682.74)
     feet (emphasis supplied).

This language indisputably refers to the road as "now

discontinued"; what is considerably less clear is whether the

choice of words was intended as a conveyance of the plaintiff's

interest in a right of passage over the road, or is simply a

reference to the road for purposes of metes and bounds, adding

as a gratuitous description that it was discontinued.6

To the extent the defendants intend to press this issue on

remand, the judge has discretion to consider evidence relevant

thereto.   The judgment of the Superior Court is vacated, and the




     6
       The record, paradoxically, also contains the deed by which
Poitras acquired his property in 1995. That deed refers to the
"intersection of Old County Road" with no mention of its having
been discontinued.
                                                               9


case is remanded for further proceedings in accordance with this

opinion.

                                  So ordered.
