HISTORICAL BACKGROUND AND RELEVANT DEED LANGUAGE
In or about 1929 the only farmhouse on Swett Hill Road (then Sweat Hill Road) burned down. Thereafter, the Town of Sterling abandoned Swett Hill Road as a public way. SEE https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter82/Section32A Rights to use that abandoned way thereafter, in the event of a dispute by or among other abutting land owners or users, would have been determined by ‘common law’ principles hashed out in a court action. Apparently no dispute ever arose and various individuals used that stretch of road as a ‘private way’ amicably. In the late 1940s the Town of Sterling re-established Swett Hill Road as a public way.
In the meantime, however, Howard and Bertha Hall, owners of a large tract of land along the southerly side of ‘abandoned’ Swett Hill Road, between it and East Waushacum Lake, hired William C. Roy, Civil Engineer, to draw a plan of lots, each lot being 75′ x 140′, to be laid out as a cottage sub-division with named streets, those being Hall Ave., Warren Ave., Foster Street, Allen Street, and Jenkins Street. That plan, named “Waushacum Park,” was completed and dated April 22, 1944. The Halls thereafter sold off “Waushacum Park” lots, some of which were consolidated by purchasers.
On May 19, 1945 the Halls conveyed four (4) consolidated “Waushacum Park” lots, as one parcel, to Carl and Gladys Rogers, by deed recorded at the Worcester District Registry of Deeds, Book 2955, Page 285. That land comprises the northeasterly corner of “Waushacum Park” where Warren Ave. and Jenkins Street terminate. Neither Warren Ave. nor Jenkins Street was ever graded or built and they remain “Waushacum Park” “paper streets.” The Rogers’ front yard bordered Jenkins Street. The southerly end of Jenkins Street joins the easterly segment of Hall Ave. The Rogers used an existing cart path from ‘abandoned’ Swett Hill Road, then a ‘private way,’ over land retained by the Halls, to their land, as a driveway, and Carl Rogers transported over it the building materials used to construct the Rogers’ cottage in 1945. That cart path was the driveway to the Rogers’ cottage, Jenkins Street and Warren Ave., both “paper streets” only, remaining as rough ground to this day. It is important to note that the cart path referred to led directly from Swett Hill Road to the northerly end of the plan-drawn “Jenkins Street.” From that point, on the ground, the cart path continued within the drawn plan boundaries of “Jenkins Street” downhill to Hall Ave. It is still visible.
The Rogers’ deed recites in pertinent part that: “The grantors [Halls] convey herewith the right to ingress and egress on foot or with vehicle to said [Rogers’] premises on Hall Avenue, Allen Street [also an unimproved, rough “paper street”], and Warren Avenue and to Kendall Hill Road insofar as the grantors have any rights thereto. The grantors also convey herewith the the right of ingress and egress to Jenkins Street” (emphasis added). Since Jenkins Street connects directly with the eastern segment of Hall Avenue, as drawn on the “Waushacum Park” plan, and the Rogers’ yard fronted on it, it is obvious that the Halls conveyed to the Rogers a right “of ingress and egress to Jenkins Street” over their land from Swett Hill Road. Otherwise, that deed conveyance language would be pointless and superfluous.
Since Swett Hill Road was still an ‘abandoned’ public way, and hence a ‘private way,’ in 1945, it is clear that the Halls intended, “insofar as [they had] any rights thereto,” to grant the Rogers a right of way out to and over Swett Hill Road and up to Kendall Hill Road, a Town of Sterling public way, the existing cart path/driveway being the shortest route from the Rogers’ cottage over the the Halls’ retained land to Swett Hill Road.
The deed language referred to hereinabove was set forth in the October 28, 1964 deed from Carl and Gladys Rogers to John W. Stevenson, recorded at the Worcester District Registry of Deeds, Book 4514, Page 29, and then in John W. Stevenson’s deed to Maryanne MacLeod, the current owner, dated January 29, 1970, recorded at the Worcester District Registry of Deeds, Book 5009, Page 237.
From 1945 until now the cart path/driveway referred to, whose northerly end is at Swett Hill Road, has been the exclusive and continuously used means of ingress to, and egress from, the Rogers-Stevenson-MacLeod home.
By deed dated April 27, 1972, recorded at the Worcester District Registry of Deeds, Book 5219, Page 433, Bertha Hall conveyed to the Town of Sterling the thirty-five (35) acre tract on the southerly side of Swett Hill Road, including the land over which Maryanne MacLeod’s driveway runs. That deed excepted all of Sholan Park conveyed to the Town in 1934, all “Waushacum Park” lots conveyed out previously by Howard and Bertha Hall, and some other parcels conveyed out previously by the Halls. Her deed specifically recited that the Town of Sterling took that tract “Subject to the rights and paper streets previously conveyed by grantor”(emphasis added). The May 4, 1973 deed from the Town of Sterling to the Town’s Conservation Commission, recorded at the Worcester District Registry of Deeds, Book 5335, Page 263, set forth the same language.
LEGAL ANALYSIS
It is “black letter law,” meaning universally known, that “subject to” means “Liable, subordinate, subservient, inferior, obedient to; governed…by….” Black’s Law Dictionary, (Revised 4th Ed., 1968)(emphasis added), citing American Mfg. Co. v. Commonwealth, 251 Mass. 329 (1925), and other cases. There are too many Massachusetts appellate court real property decisions discussing the term “subject to” to list here, but here is a good example: Canton Highlands, Inc. v. Searle, 9 Mass.App.Ct. 48 (1980). (http://masscases.com/cases/app/9/9massappct48.html )
The Halls did not reserve any rights to use the “Waushacum Park” “paper streets” and, so, Bertha Hall, in her 1972 deed to the Town, acknowledged that she and her husband had “conveyed” out those “paper streets” to the “Waushacum Park” lot buyers previously, those “paper Streets” being parts of the “Waushacum Park” sub-division. As a corollary, the Halls, in their deeds to “Waushacum Park” lot buyers, said this: “‘grantees’, their heirs or assigns agree to become co-operating associates in any association formed for the upkeep of [the “Waushacum Park” “paper streets”] while the same may be private ways”(emphasis added). Those “paper streets” have remained “private ways” to this day. The Halls, in other words, acknowledged that they retained no ownership rights in, and no maintenance obligations as to, the “Waushacum Park” “paper streets.” In view of the foregoing it is patently clear that the Town of Sterling has no rights whatsoever to use the “Waushacum Park” “paper streets” privately owned by others since the 1940s. See Boudreau et al. v. Coleman et al., 29 Mass.App.Ct. 621 (1990). ( http://masscases.com/cases/app/29/29massappct621.html )
Moreover, the Town took its land explicitly subject to Maryanne MacLeod’s “right of ingress and egress to Jenkins Street” from Swett Hill Road, and her related right of “ingress and egress on foot or with vehicle to …Kendall Hill Road.”
NOTE ON POSSIBLE DEED DRAFTING ERROR
Bertha Hall’s 1972 deed to the Town of Sterling recites that the tract in issue is on the “westerly side of Kendall Hill Road” and “run[s] by said Kendall Hill Road…Two Thousand Three Hundred and Seventy-Six (2,376) feet….” However, Sterling GIS online mapping shows that all of the land in issue is on the southwesterly side of Swett Hill Road. It appears that the deed contains a drafting error that was repeated in the Town of Sterling’s 1973 deed to the Sterling Conservation Commission.
SUMMARY AND CURRENT STATUS
Despite the foregoing operative facts and applicable law, the Town of Sterling, by its Select Board and Conservation Commission, has claimed, spuriously, since 1972, that Maryanne MacLeod has no legal right to use her driveway–which has been in continual use since 1945–and, further, that the Town has the right to use “Waushacum Park” “paper streets” for walking trails. In all my years as a lawyer I can say, truly, that these are the most egregiously dishonest, baseless, and contemptible false property claims that I have ever seen. The Town officials asserting them with straight faces are utterly despicable and should be regarded as such.
Maryanne MacLeod, former Conant Library assistant, unofficial Town historian, writer of successful grant applications for the Town and Town organizations, and fifty-one (51) year property tax payer, now elderly and legally blind, has been forced to hire a lawyer to vindicate her legal rights and has incurred thousands of dollars in legal fees to maintain the action Maryanne MacLeod vs. Town of Sterling et al., Worcester Superior Court Civil Action No. 1885CV01098.
The Select Board is now calling the shots on behalf of the Town in this litigation. In perpetrating and continuing this hoax they have demonstrated their utter shamelessness, as have certain Conservation Commission members heretofore.
They make all the rest of us look bad.
J.G.
NOTE: This article re-posted 29 April 2021 due to WordPress software glitches experienced this week.
STERLING, MASSACHUSETTS, OVERWATCH 