Over many years, the discontinued use of a public road or way could lead to a dispute over ownership, as in a May 9, 2018 Massachusetts real estate case. The plaintiffs filed the action in the Land Court, seeking a determination that a short, partially paved, and gravel way passing over the defendants’ properties was part of a public way, and furthermore, that it remained a public way today. Conversely, the defendants argued that it was a private way. To decide the issue, the Land Court looked at records of the creation of the way from 1816, when the town voted to accept a road laid out in the area of land currently owned by the defendants.
In Massachusetts, a way is not public unless it has become so through one of three ways. First, it may be laid out by public authority in the manner prescribed by statute. Second, it may become a public way through prescription. Lastly, prior to 1846, an owner could dedicate the way to public use, and upon acceptance by the public, it could become a public way. Under the facts of the case, the area in dispute could only be a public way if it was laid out as such by the town.
Once a public way has been duly laid out, it will continue to be a public way until it is legally discontinued. Generally, the courts will not assume that public officials have abandoned a highway easement without an act on the part of the property authority to discontinue its status as a public way. Nor will mere non-use or apparent abandonment of a public way by a town result in the discontinuance of its public status. In the case, there was no evidence that the disputed area was discontinued. As a result, if it was properly laid out as a public way in 1816, it would retain that status presently.