Situation: A family owns a residence on a parcel, including, as evidenced and pictured on the City’s assessment pages, a small portion that runs by their residence on the surface of an aqueduct that passes through Waban. The public has enjoyed the use of the aqueduct path for hundreds of years. The family now finds the public passage to be intrusive and disturbing, keeping them awake at night. Neighbors try to find common ground with the owners to keep the passage open. In spite of ongoing community informational discussions, the property owners erect a cyclone fence to prohibit the public from using the land the family sincerely believes they own.
Issues: What are the issues here? We know and appreciate the importance of Property Rights that are involved and do not take them lightly. We know also that there is a public policy called Adverse Possession that could be brought into play to keep the path open for public enjoyment. We understand that the City in the past neglected to obtain surface rights to this small portion of the aqueduct as it has on other portions of the pathway. Some of the complex of questions that arise may involve 1) Neglect or discrimination by the City; 2) Complementary/Competing Rights of the Aqueduct’s Ownership Entities, be they local or state owned or assigned or designated; 3) Determination of “Standing” to raise adverse possession for the public. If as explained by the local Ward 4 City Councilor, the City seems uninterested in supporting the public’s claim through a City lawsuit or other legal maneuvers, are the abutters the only sources of support for this approach? Does the “public” have standing?
Solutions: Are there any “Solomons” in the community, legal or wannabe, who could help to inform public discourse and lead to a peaceful and respectable resolution to this problem?
No snark, please. Just helpful hints.
Can you be more specific about the location?
I had thought that the land on the aqueducts had an easement.
@Newtoner: I purposely chose not to identify the land owners or the exact location of the pathway obstacle. Any suggestions for a solution should not depend on the precise location. Suffice it to say that pedestrians and cyclists now have an obstruction that prevents passage along a formerly accessible pathway.
@Bruse C.: nothing is ever simple. Apparently, the City neglected to obtain an easement over this portion. Does that make their omission an omission of neglectfulness or discrimination (why obtain/demand/purchase an easement from some, but not others?) A weird circumstance that may need a weird solution.
As far as I know there is only one location in Newton that fits your description, and it’s a significant disruption, since the nearest entry point is quite far. I’ve always wondered how that spot ended in private hands.
If the path has been used for generations and is now being blocked, and if the other areas have an easement but this area does not, it seems like you either have a case of adverse possession or failing that, eminent domain to maintain the public use.
I will note that the family who has decided to block access per your description must have known about the path when they bought. If it was open and notorious, the fact that they are now deciding to block access along the entire path is a selfish way of dealing with a problem. Perhaps a city funded noise barrier or signage might help. Or a payment for the easement that should have been in place in the first place. But blocking a community from using a path due to the actions of a few folks being loud on the path, when you moved next to that path that existed before you moved, seems like a solution that benefits only the landowner, and punishes everyone else.
And at some point Sallee, you should advertise who it is. Public opinion is not going to be on the side of the landowner. Not if they bought knowing how the path was used.
Not an expert on this particular area of the law, but the issue with establishing a public prescriptive easement or a taking by eminent domain would seem to be standing. Generally, such actions would need to be instituted by the City, because they would be the claimant to make the land “public,” which seems (according to the original post) unwilling to do so here. A private action, say, by an abutter, for an easement by adverse possession would be much harder to establish, and, in any event, would only permit access by the abutter. Pressure on the City to change course might be the most viable route.
What has the city’s response been?
Don’t know the site, but if there’s a current mortgage on the land then the Lender has a say in what gets done, assuming upon property purchase or financing that the land’s title came back clean (which would fit Sallee’s facts). Also the property insurer is in interested party. Or a future lender if the owner wants retain future flexibility to borrow. Point is it may not be as simple as owner and city working it out.
@ Newtoner: the fence, blocking a few feet of the path, is brand new, so I don’t think you have the right spot.
I suggested to Sallee that she posts this item, with the address and pictures. I have to respect her choice.
I believe you need to see the pathway and obstruction before sharing a opinion. Knee jerk reaction would be ” Tough cookies for the homeowner It was there and used when they bought the house. “. BUT If the path looks right into their property and their privacy is being invaded then No. Some accommodation should be made.
I am not looking to determine a specific solution in the Court of Public Opinion…just to understand the complex issues this action raises.
Sallee, that makes sense, despite my earlier post. I think you will need to get the city more involved. I’m assuming the city was granted the easement on the other parcels.
I will say this, in fairness to the landowner. Our parks and paths are getting a lot more use during Covid. What was once an annoyance could now be something greater. I still don’t agree with the approach to fence off the path, but perhaps they felt they had no choice.
What you are looking for sounds like a prescriptive easement (not adverse possession). This provides a right of access but does not take the property nor deprive the owners of access to the land. I can think of several cases in California very similar to yours where easements have been granted (Google prescriptive easements and you should get some general info). Unfortunately you would need to go and obtain a ruling by the court – probably need a land use attorney. If there is a group of you might be able to split the costs. Otherwise, eminent domain by the City is your best bet (depending on the laws where you live and whether the property is a single-family home).
I don’t know if MWRA and MAPC are still involved in aqueduct trail access issues. They used to be the leads in this.
What about the same block on Pine Ridge where a new “neighbor” unearthed a large rock and just left it on the persons lawn next to their newly laid sod. Oh yea they knocked a speed limit sign down in the process but finally realized they couldn’t just leave that… my point: there’s a lot of money to be made, more if you are disrespectful it seems
If you look at the city GIS map (and pretty much any other map online) you’ll see that the land on that block is not owned by the City nor the state–it’s private land. The former aqueduct land acquired by the city is delineated by its own property boundaries and colored green signifying it is public space.
The adverse possession claim fails multiple tests: no standing for public use; not exclusive use; and not adverse (e.g. the homeowners pay the taxes on the land and have likely maintained the land at some point in the past 20 years).
Therefore the only avenue would seem to be eminent domain, which seems like an abuse of power since there is a simple alternative: walk down Chestnut and turn at Woodward (or visa versa). The detour adds 150 feet to the route, which is not a hardship by any means.
Not mentioned is a ‘right of way” argument, which also fails the test as each abutter has street access and can simply use the sidewalks like everyone else.
OK: let’s literally dig a little deeper. Under “normal” circumstances, the land in question might have been in someone’s backyard and might have had a history of being used for 100’s of years as a public way. But this circumstance is a bit different (naturally). There is an aqueduct below the surface. So, is there an ownership of this property that allows all “normal” uses? For example, could this homeowner (provided he had the necessary setbacks, etc.) put in a swimming pool there? Or does he simply own “surface rights”? If so, how far down? Also, is he enjoined from constructing anything permanent on the surface he owns? (Like the chain link fence that is now there?)I think this is VERY complex and convoluted and needs the City’s Law Department to help us to put this all in context. There are a lot of legal principles that need airing. Another consideration: if Newton now uses the aqueduct for its sewer lines, does the City need access that the fence might impede?
Sallee, if my interpretation of the GIS city map is correct, there are 4 different properties on that block over the Cochituate Aqueduct, used today for sewage, but open for public use along other segments all the way to Cold Spring and beyond. None of them appear to be city parcels, sadly. The map also shows easements all over the city for culverts, sewers, etc., and it appears this may be one of those also.
There are some properties with a long history of encroachment on the other end of the Cochituate near Newton Centre also. One of them has been made available to the public by the generosity of its former owners, the Wilsons. It sure would be nice if this property owner followed that example.
It baffles me that people find bicycle and pedestrian paths so intrusive to their privacy, yet thousands of trucks and cars passing directly by every day making far more noise and polluting the air is of no concern.
I don’t think we should demonize the owners, whoever they are. Without knowing the situation, they may feel differently about the encroachment. And if it is their private property free and clear, they are not obligated to give any reason why they don’t want people on their property.
I agree Bruce. While it would be nice if there were a way to keep the path open, if the owners do own the property, nobody should demonize them. I hope I didn’t imply otherwise.
My comment about resistance to public paths is a general one.
I have limited understanding of the law, but if this land has been used in this way for ‘hundreds of years’ and it has been open and public, doesn’t that constitute an easement by prescription? Unless there is signage, or someone goes out there EVERY day and asks the users to go away.
@sandra d If the path is over the aqueduct, the MWRA should have an easement on it. The aqueduct is state property.
The other question is taxes and trash. Do all abutters pay taxes on the trail portion of their lot?
Someone brought the issue of trash left on the trail but, from what I have seen, trail users are very responsible; or will pick up the trash they see.
Today, i walked on that section of Chestnut and Woodward Sts; in the middle of the day, not rush hour, the traffic noise was awful. Nothing compared to the peaceful quiet of the trail.
Can we all work together to keep this safe and quiet path available to all?
Is there any update on this?
I just walked by the spot in question, I think, though I will respect the OP’s request not to name it here. The chain-link fence still blocks the path, but it is possible to get around it and keep going along the path if you are willing/able to do a little scrambling.
It’s interesting that the family decided the best solution was to erect a fence that now forces walkers to go onto a neighbor’s property. I am genuinely curious about how the neighbors feel about this.
@Alex unlike the Sudbury, the Cochituate was converted in the 1950’s to carry sewage. It’s owned by the city, not the MWRA.
@Bill: Nothing new that I have heard…
I also just walked by there recently, it would have been really easy for the homeowners to build a solid fence along their yard (as opposed to across the path) which would shield them from seeing the people on the path getting exercise. I also noticed a trail-cam has been installed between the newly installed fences to catch the ‘wildlife’. I have been walking along that path for years and never seen any rowdy behavior, trash, or noise whatsoever. I think it’s also interesting that the homeowners whose front lawn you basically have to walk through at the access to the path on Chestnut St have no signs or barriers up.
As for my opinion on what should be done, if the homeowners are actually being disturbed by people walking on the path they could simply build the aforementioned fence along the border of their lawn (not the path), or, as I’ve seen done near Crystal Lake, having public access paths through private lawns that are accessible during daytime hours only.
Regardless of the legal issues at play, I find it depressing that folks would choose to block historic paths like this and basically destroy a piece of our collective cultural heritage as a city. I wish folks would have more civic responsibility and think about how their actions affect their fellow citizens.
Just passed by this property and was appalled (also by the cams). But this. thread has been very informative: clearly in not claiming easement some time ago the town is primarily at fault, and nobody has proposed a workable basis for them to claim retroactively. I walked in from both ends and even the Chestnut street end has a very small path that goes right through the (generous) property owner’s yard.
I would suggest that the best solution would be to get permission to post small signs at both ends of this section to divert walkers to the sidewalks. This is what they do in other lands with walking trails tgat get blocked for various reasons.
I think the “Solomonic” inquiry here is laudable, but if the town let right-of-way slip, it can’t reclaim it now