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Concord homeowners lose bid to keep people off a path that has been a public way since before the Revolution

The Massachusetts Appeals Court ruled today that what was once a two-mile road from Carlisle down towards the center of Concord is still legally open to the public and property owners need to stop blocking it with the locked gates and warning signs they first put up in the early days of the pandemic to try to bar hikers out for fresh air.

The decision on the status of the northern end of Estabrook Road relies on history dating to at least 1763, when a body that no longer even exists - the Middlesex County Court of General Sessions of the Peace - first established the road. That history then continues through the 1800s, when Thoreau, naturally, helped survey the road, after which he and Ralph Waldo Emerson's daughter both put to writing descriptions of trips along the classic New England country lane.

Gate that marks the end of the paved road and start of contested unpaved path.

The court acknowledged that Middlesex County commissioners voted in 1932 - on a request from Concord town officials - to make the contested part of the road "private," but the state's highest court concluded that was more to protect the town from any liability for injuries suffered on a road it no longer wanted to maintain, rather than to give up public access to the lane completely. The court noted that in Massachusetts, towns also have to vote to formally abandon a road, and Concord Town Meeting never did so.

The legislative scheme provided other avenues to discontinue all public rights in the road, and they were not utilized here.

Although Concord agreed in 1932 to stop maintaining the road north of the town center in passable condition for automobiles, it continued to allow people to walk between the stone walls that lined it, taking in the local natural beauty and remains of colonial homesteads and works along the path. In more recent times, the town has even published a guide to hiking along and near the unpaved section of the road.

As the court noted in its ruling, pre-revolutionary land owners ceded land to the town to construct a road between the centers of Carlisle and Concord, and that over the centuries it remained a way for workers to move quarried limestone and felled logs out of the woods around and near Mink Pond. Thoreau once worked to help survey the road, but later had more leisurely journeys along it, the court noted:

Henry David Thoreau also wrote about Estabrook Road in his journals in the 1850s and described his interactions with individuals he met on or near the road. The town's expert historical archaeologist relied on those writings to conclude that Estabrook Road was used for such things as travel, berrying, collecting nuts, and logging. The daughter of Ralph Waldo Emerson described a carriage ride along Estabrook Road in 1866 and a picnic she shared with others in the area in October 1886. An 1897 Massachusetts travel guide stated that the drive through Estabrook Road "through the woods" and by the lime quarry, was a "favorite summer" drive.

The town actually sued owners of land along the road, who include Harvard University, because of course Harvard owns several hundred acres of land in Concord, way back in 2017 to preserve public access, at least on foot, to the unpaved parts of the road.

The fight heated up in 2020, when two homeowners locked two gates onto the road and put up signs warning people to keep out of the "private" property, pursuant to "order of the county commissioners" - an apparent reference to the 1932 commissioners' vote.

The appeals court does not long tarry on this part of the battle, but in his 84-page decision, which the court upheld, Land Court Judge Howard Speicher does, in part because after traveling out to Concord to look at the road, he ordered the homeowners to removed the signs and locks and other barriers, at least while the court battle continued.

Speicher wrote the homeowners moved to block the public three weeks after Gov. Baker declared a state of emergency in March, 2020. In July, Speicher issued his preliminary injunction ordering them to remove the locks and signs.

In November, 2022, Speicher issued his ruling, making his preliminary injunction permanent after concluding that the path was a "public access" private way that had never been fully abandoned by the town. The residents then appealed.

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Comments

These land grabbers are shameless. I hope they enriched their lawyers, because someone should benefit from their greed and immense waste of court resources in their pathetic attempt to defraud the public.

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and we are lucky to have him as a Judge in the Land Court.

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I’ll go out of my way to walk this trail now. Please consider doing the same.

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This is a public treasure no matter how much it’s used and strolling rights must be protected by law in perpetuity not unlike our access to great ponds.

Every generation must have the opportunity to trod upon and commune with these exceptional natural and historical gifts to mankind that allow us to walk with Thoreau and others including other paths used by brethren of our human family who migrated to the continent before L’Anse and Columbus.

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Are you speaking about wildlife or Neanderthals or who?

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The Sisterhood of the traveling pants

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@Frelmont is verbose to say the least. That's some pretty heavy prose.

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Or is using a term that is infrequently used so taxing upon understanding (and looking up its definition) that weak wit is offered as an unnecessary response?

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You missed the ambiguity in his statement.
Thus you missed out.

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It seemed like you were writing your own comments for awhile. But the temptation was too great.
Also as far as I know, Thoreau never hung out in this part of Concord.

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But as both the Land Court judge and the SJC noted, he was familiar with it (also, somebody who lived on the road had Thoreau's original Walden cabin moved there, where it eventually rotted away).

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Anon, I don’t understand the AI comment. Is it a burn? A grade for bad writing? Un-original? Hackneyed? Well, thanks for saying some of my replies weren’t “AI.”

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From beaches, to the Harborwalk, to the Custom House Observation deck - Keep exercising your right to public space.

Don't let private interests take away what is public space.

Looks like I have a hike ahead of me through some rich people's backyards.

Also, my many years old offer of $500 for anyone who can produce the long-time buried agreement mandating public access for most of the day to the Custom House Observation deck, without Marriott saying things like "we don't have people to watch you" or "it's windy" "it's Friday" is still out there.

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Word.

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Page 10, section 1.2.1

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Grown-ass adults make those arguments with straight faces?

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Tell me how you’d like to arrange payment lol

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Custom House Observation Desk, it is not public. Get your facts straight

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It was made especially for me and me alone. Touch my tudor, would you look at that house over there!

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Please share with us what you know about this deck other than snapping "get your facts straight" at us.

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I think we can all be on John's side on this one!

See!? There's always SOMETHING we can all agree on! Yay!

I suddenly feel like watching the end of "The Breakfast Club" again for some reason...

\o
  |\

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Kumbaya ... etc.

Great decision, great outcome. Just because it ain't paved and cars can't go there doesn't mean it isn't a road!

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... if one attempted a carriage ride along this road these days?

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One of the more vociferous losing parties in this case (he has an impressive collection of enormous signs on his property, cherry-picking facts that support his case) claims automobile drivers are now using it regularly.

I've asked him for a count and he hasn't provided one, but he has sent some surveillance cam stills that would suggest 2 cars have at least pulled into it. I only occasionally use Estabrook Rd, and while I've never seen any sign of car use, the way is likely passible between Concord and Carlisle at low speed with a stock high clearance vehicle and moderately competent driver.

I suspect a period-appropriate carriage could pass it with similarly cautious/skilled operation (certainly the clearance wouldn't be an issue) though I doubt it'd be pleasant.

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They can now ban cars from the roadway.

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Hence the gates, the ones that were unlocked until the residents went to their local hardware store. So the question is enforcement.

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THE Cosmo Catalano?

Of "cars, odd side only" fame?

You've made every snowstorm at my house an amazing dance party for the past nearly two decades.

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and excellent to hear the snowmix still brings you such joy

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Interesting. Maybe a smaller buggy would do better than a full-size carriage? ;-)

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Page 10 describes the public access to the observation deck.

https://www.boston.gov/sites/default/files/imce-uploads/2017-08/marriott...

I don’t care about the money I enjoyed hunting for it, but if you do want to spend some then a donation to the National MS Society would be nice

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I goofed and conflated the Custom House and the Hancock building. Thank you to Michael for pointing out my mistake.

edit The BRA infamously ‘misplaced’ the original deed / previous lease, which by many reports contained a permanent easement granting the public free access to the observation deck.

It has been suggested that the language of the current lease is so awkward and convoluted that it allows the tenant to functionally cut off access entirely for indefinite periods of time (which they have done).

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That lease is from 1996 and the Marriott there officially opened in 97. So unless the notarized and dated document on the Boston government website is changed then I think it is the actual lease

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The infamous "lost document" was for the John Hancock Tower 60th floor observation area, not the Custom House Tower observation area.

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Given the road's location and proximity to Concord's North Bridge, it's quite likely that some of the "embattled farmers" -- to quote Ralph Waldo Emerson -- traveled that road on the morning of April 19, 1775, en route to face the Redcoats.

Carlisle was created in 1780 from parts of Concord, Acton, Billerica, and Chelmsford, all of whom sent minute men to fight that day.

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I didn't put it in my story, but Carlisle's Minutemen marched down the road to the rude bridge that fateful morning.

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They would have been loyalists and would have tried (and failed) to stop the Minutemen.

Although their issue wouldn't have been with English rule as much as fear of icky peasants from Arlington walking dogs on their landscaped lawn and looking in their general direction.

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Tru' that!

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Carlisle minuteman hike that road every year now to the north bridge in April. It has always been public.

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For decades this section of road (which becomes a trail) has been used by hikers and bike riders with no issue.

Abruptly, a few years ago some jerks tried to close off the road and make it difficult to use and hung up threatening signs. It's that action which started this case. They were successful in making people fearful to use the road. I'm a member of some groups that told people to avoid the stretch until the case was resolved.

It's notable that not everyone along the road acted this way -- some people were supportive of the public's right to use the road and adjacent woods. The town has also been supportive.

So it's great this case is now over the jerks who wanted to keep the public out for their "privacy" have no legal grounds to continue trying to do so. I'm sure they'll keep posting threatening signs on their yards but they won't be able to put up gates and threaten to prosecute for trespassing.

EDIT: It's worth noting there is the "Streisand Effect" in action. Few people knew or cared about the road/trail beyond those who enjoy hiking or cycling on trails in the area. But the case has generated a fair amount of press, particularity as the rich landowners keep fighting to keep it private. So no doubt there's going to be a lot more users in the future than had they just kept quiet.

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but if people avoid using then it can hurt your chances of keeping it public? Use it or lose it.

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SJC is the final word on that. It doesn't matter if it is used or how since it is a right of way and the town never relinquished control of it.

Just like the people complaining about the green line taking "their" back yards which were never theirs, didn't appear on their deeds, and they never had to pay taxes on.

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is there a map somewhere showing the full length of the road (not just the part usable by cars)?

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https://osm.org/go/ZfI0R60H?layers=YN

Here is a better streetview image of the gate that was installed before the property owner really tried to keep people out.

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Can we now petition Google to remove the "Private Dr" note on the image?

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Done

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These supposed citizens should be shunned.

After time in the stockade to allow their neighbors to make their opinions clear.
With rotten fruit.

Shameless.

Using a pandemic for a blatant land grab is despicable.

They should face harsher penalties.

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The punishment device was called "stocks". ("Stockade" is a wooden protective barrier around a camp or town).

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Thanks for the correction.

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I'm all for bringing back the stocks as a punishment for low-level crimes where society thinks that public shaming might be a good deterrent or punishment.

I cannot agree that the loser of a civil action should be put in the stocks. We don't even force the loser to cover the winner's legal costs.

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At this point it's a trail with rocks and roots. Certainly ridable if you are comfortable with those surfaces but it's not maintained like the nearby reformatory trail. Most riders are on mountain or cross bikes.

I have a friend who was hurt on their bike when someone moved on the big stones, leave a hole in the ground that was covered by leaves. It was speculated that one of opponents was trying to make it harder to ride. That said, others have noted the people with the gate have said they aren't opposed to people riding to the trail, it's just car parking they are strongly opposed to.

The trail wasn't well known until the pandemic when people started seeking out more places nearby they could walk outside which led to the end of the street turning getting lined with cars. (Oh Boo Hoo)

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