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.