Mass court upholds public rights to Rogers Path in West Tisbury

Rogers Path has a well established town history.

The Massachusetts Appeals Court has upheld an earlier Superior Court decision in favor of the town of West Tisbury and the public’s established prescriptive rights to use an ancient way known as Rogers Path.

Rogers Path is south of Indian Hill Road and west of South Indian Hill Road. It intersects Indian Hill Road and State Road, in what is known as North Tisbury or Middletown.

“The plaintiffs are property owners and trustees of two realty trusts,” the Appeals Court wrote in a decision dated June 14. “They sought to resolve ownership and access rights to portions of Rogers Path, an unpaved way that crosses their property in West Tisbury. After a jury-waived trial, a judge of the Superior Court granted declaratory judgment in favor of the town and its selectmen. The plaintiffs appeal, arguing there was insufficient evidence to support the finding that the town, in its corporate capacity, had acquired a prescriptive easement over the path by asserting dominion and control over it. We affirm.”

The Appeals Court agreed that the town’s use of Rogers Path and budgetary appropriations to maintain the cemetery was sufficient corporate action to support the establishment of prescriptive rights. “The judge’s careful and thorough findings adequately establish that the entire portion of Rogers Path was acquired by the town through prescription; they are not clearly erroneous.”

The plaintiffs had appealed a January 25, 2010 decision by Judge C. Brian McDonald who held that a management agreement for the care and use of the road, entered into by the town and the Martha’s Vineyard Land Bank in 2001, defines the terms of the public use and care.

Judge McDonald rejected claims by abutting private property owners Robert C. and Tracy S. Smith, trustees of RTS Realty Trust, Scott F. Bermudes, Cynthia L. Cornwell, Mark and Kimberly Baumhofer, and Alex and Laura Alexander, trustees of AA Realty Trust, who filed suit in January 2002.

Town counsel Ronald Rappaport of Edgartown said he was pleased with the decision and the public rights it upheld. Mr. Rappaport said there are a number of so-called ancient ways on Martha’s Vineyard that have long histories of public use.

The degree to which the public may or may not have a right to use a particular road is often a subject of debate, he said. In the case of Rogers Path, there was a well established and documented history of public use, he said.

Prescriptive rights are established when there has been continuous public use and municipal (corporate) action for a period of 20 years or more. That is not always easy to prove.

This was an important case to win, Mr. Rappaport said, in order to protect the long-established public and municipal rights to Rogers Path.

Following Judge McDonald’s decision last year, Land Bank executive director James Lengyel said it is the principle that counts, “namely that these ancient ways have a public character that needs to be protected.”

The named path, according to court records, dates in written records to 1826, when it was called the “Old Cart Way that leads to Prince Rogers” and by other names, including “Burying Ground Road,” referring to a North Tisbury or Middletown cemetery. West Tisbury entered into an agreement with the Land Bank in 2001, under which the Land Bank was to manage the path for public use. That agreement triggered the lawsuit.

Judge McDonald held that a combination of the town’s appropriation of funds over the years to be used in connection with the path, and the public’s history and continuing use of the path helped to establish a “prescriptive right” of public use. The court traced the change in the perceived character of the road over nearly 200 years from “cart path” to “lane” to “road.”