Letter: Public ways, private ways and Estabrook Road 

January 26, 2024

Your 1/19/24 headline “Is Estabrook Road private or public? The court decides” sets back public discussion of the issue. As the Land Court noted in its November 2022 decision, the terms “private” and “public” are extraordinarily unhelpful when referring to Massachusetts roads. Justice Breyer cautioned courts against “making broad public/private distinctions” when interpreting Massachusetts statutes referring to roads for this reason. The meaning of “private way” in the older statutes, including the 1924 statute (MGL c.82 sect. 32A) under which the road was reclassified, often meant some form of public way (p. 68-9); in the case of Estabrook, probably a “statutory private way” (p.83), extinguishing the town’s obligation to maintain the road, not the public’s right of access.  

Also, to state that “over the years, property owners have blocked off the end of Estabrook Road from time to time” is at best misleading. Before 2017, when the landowners constructed the two fortified gates across the entire width of the road, the road was gated by an easily crossed rope, leaving an open gap for pedestrians. In my 35 years of walking Estabrook Road, I have only ever seen it “blocked off” once, in April 2020, when the landowners “unilaterally locked the two gates” and put up a sign declaring the road “private” and “closed by order of County Commissioners” (p.2).In July 2022, the court called the signage “misleading” because it might mislead the public, as the language of the 1924 statute seems to have misled the landowners, into thinking that “private” referred to the public’s right of access, rather than the town’s maintenance obligations, and meant that they could block public access to the trail at will. 

I encourage anyone with an interest in local history, Massachusetts land law, and statutory interpretation to read the Land Court’s lucid and careful decision, available at masscourts.org

Michael Dettelbach 

Assabet Avenue