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Erickson v. Clancy Realty Trust

Appeals Court of Massachusetts, Barnstable

January 6, 2016

Robert J. Erickson
v.
Clancy Realty Trust & others. [1]

Argued November 12, 2015.

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.

Present: Cohen, Grainger, & Wolohojian, JJ.

OPINION

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 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

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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 ...


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