Middle Line Road is not much of a road. But it’s a heck of a legal problem, as quickly became evident when the controversy over its 270-year history and uncertainty over its future use landed in the Dukes County superior court in Edgartown this week.
The essence of the case is simple enough.
The Hall family, which owns land alongside the road, wants to improve it. To that end, they engaged contractors to cut trees and widen it.
The town of Edgartown, the Martha’s Vineyard Commission and others who are engaged in a concerted effort to protect ancients ways, want to stop them. To that end the town is seeking a preliminary injunction to halt any further work on the road by the Halls until a court can rule on the extent of public rights over the road.
A motion for a preliminary injunction is a test of the likelihood of winning a case on the merits versus irreparable harm. The town won a restraining order against the Halls to halt the cutting early this month, and this week the restraining order was continued by the Hon. Brian C. McDonald, an associate justice of the superior court, pending his ruling on the preliminary injunction request.
The issues are somewhat arcane and rooted in both history and the law. Is the road, or path, or way — which goes by several different names — public or private? If it is public, what residual rights do landowners abutting Middle Line have? And if it is private, what rights do the town and others have?
The complications go all the way back to 1735, when the town’s proprietors created what is termed the first division of the old purchase, carving up land previously held in common among various owners.
The road served as a boundary line between properties and presumably also as access to them and to other roads.
At a court hearing on the preliminary injunction request on Tuesday afternoon, Edgartown town counsel Ronald Rappaport argued that the people who signed that 1735 agreement were the same people referenced in town minutes of that year as the selectmen. As a consequence, it is likely they acted not just as proprietors, and the current Edgartown selectmen can be deemed their legal successors, he said.
Therefore, Middle Line was a public road, under the control of the town.
On the basis of that reasoning Middle Line Road, along with several other old roads, was added two weeks ago to a special protection zone by the Martha’s Vineyard Commission.
Typically, that leads to restrictions on use, including protection of vegetated buffers within 20 feet outside the ways’ sidelines, limits on driveways and signs, and regulations governing the width and precluding paving of the road surface.
Mr. Rappaport cited a 2004 state appeals court ruling relating to an ancient way on Nantucket, which found the road belonged for practical purposes to the public authority, and he said the Halls acknowledged in an earlier land court case that such proprietors’ ways were public.
But Douglas H. Wilkins, the Boston attorney who represents the Hall family, argued there was no definition of what constitutes the road, which is defined by a center line but no side lines. The Halls’ property extended to the middle line of Middle Line, he said. So did the right of access and the right to cut trees.
And while the town now argues the road is public, as recently as earlier this year it had specifically disclaimed public rights in the road, he said. And since at least 1966 the town had made no effort to keep the road passable.
The circumstances are complex, Mr. Wilkins said, but one clear fact stands out: “Middle Line Road is supposed to be an open way, meaning it should be passable.”
Yet the town actually sought to prevent the road from being kept open, he said. And the recent restraining order, stipulating that there be no cutting of trees on the road, actually served to prevent Middle Line from being restored to the open way required by an 1810 reservation of right by a former owner.
The town was trying to use its alleged powers over public ways “perversely to impede otherwise lawful land development,” Mr. Wilkins argued.
If Middle Line Path is ultimately found not to be a public way, Mr. Wilkins said, then the town has no property right to prevent the construction of the way.
If, on the other hand, the way is public, the town has an obligation to keep the way open and safe for travel. In that case, the defendants were actually benefitting the town by bearing costs that otherwise fall upon the taxpayers.
The Halls, he said, are willing to limit work to a road 12 feet wide.
He also argued that further delay through a preliminary injunction, which would stop work until a decision is made on the legal question, would impair the Halls’ property rights and subject them to as yet unadopted restrictions upon those rights.
But Mr. Rappaport said if the injunction is not granted and the court allowed continued cutting of the trees, it would “eliminate the very reason the towns were interested in protecting the ways.”
There are other complications as well. The area being cut, according to a letter to the court from the assistant director of the Massachusetts division of fisheries and wildlife, lies within priority habitat under the endangered species act. To cut without permission could be a violation of the act, subject to civil and criminal penalties.
Residents of Edgartown Meadows, a subdivision abutting some of the cut areas, have joined the court case.
There also are claims and counterclaims about whether other landholders in the area had received preferred treatment by having areas left out of the Martha’s Vineyard Commission’s area of special protection, and about whether some town officials had or had not given advice about the cutting.
Judge McDonald, who is presiding over the fall sitting of superior court which runs until Nov. 2, has yet to rule on the matter. But he did note that all the maps, historical background, notes on legal precedents, affidavits and other documents presented to the court amounted to a “wealth, if not a plethora, of paper.”
A ruling is expected before the end of the court session.