Massachusetts high court hears dispute over whether 1932 discontinuance ended public rights on Concord trail

The Massachusetts Supreme Judicial Court on Tuesday heard argument in SJC-13721, Town of Concord v. Neil Rasmussen, over whether a 1932 action under a 1924 statute (commonly called —32a—4) legally discontinued a historic way and extinguished the publicright to travel on it. Attorney Gwen King, representing the appellants, told the court: "Before the court today is a question of both how a way becomes public and also how a public way is discontinued and ceases to be public." Town attorney Austin Anderson argued the 1924 provision was aimed at maintenance obligations, saying, "the point of the statute is to discontinue maintenance obligations. It doesn't say anything about public access rights."

The case focuses on three legal questions the court flagged at argument: the effect of a 1932 discontinuance by the Middlesex County commissioners under the 1924 act (section 32a); whether a way may be deemed public based on an otherwise-lost historic layout and circumstantial evidence; and the standard for proving ancient claims of public prescription. Those issues matter for title clarity, municipal maintenance duties and whether long-continued recreational use can establish a public right.

King urged the court to treat the 1932 adjudication as a full legal discontinuance under the 1924 framework and stressed distinctions among chapter 82 procedures, including sections 21 and 30. She told justices that "section 21 discontinuance . . . doesn't leave any . . . private way left intact after section 21 discontinuance per this court in Nylander," and argued the 32a process had a different outcome historically. King emphasized that the 1924 act's words and legislative context must control the effect of the commissioners' 1932 adjudication.

Anderson responded that, read in context of chapter 82, the 1924 statute addressed which authority pays for upkeep and does not, on its face, abolish public access. He pointed to historical records the town offered showing town maintenance and early layouts and said the 1763 layout and surveyor records support the conclusion that the way was treated as a town way. Anderson argued that court precedent interpreting the 1983 revision of the statute already treats a 32a-style adjudication as preserving public access rights in some contexts and that affirming that reading would not destabilize land titles.

Both sides debated whether later case law (for example, Nylander and Coombs) and legislative amendments alter the legal effect of an earlier 1924 discontinuance. King urged the court to apply a narrow question focused on the 1924 act and the 1932 adjudication, arguing that some appellate decisions rely on the later statutory regime and should not control the meaning of the 1924 statute. Anderson countered that Coombs and related decisions, as interpreted by other courts and practitioners, support reading a 32a adjudication as leaving public access rights intact in practice.

The parties also disputed the standard for proving public prescription in ancient-use claims. King warned against lowering the evidentiary bar for public prescription, saying adopting the land court's approach would "drastically reduc[e] the high bar for public prescription if it's an ancient claim." Anderson argued the record contains multiple independent indicatorsthe 1763 layout, surveyor records showing town maintenance through the 1930s, travel accounts and the 1932 discontinuance itselfthat together permit an inference the way was public under longstanding precedents such as Fenn and earlier cases that permit circumstantial proof when original documents cannot be located.

No ruling was issued at the argument's close; the court heard extensive questioning and debate but did not announce a decision. The outcome could affect whether the disputed southern portion of the Estabrook/Northern Trail remains subject to public travel rights, how municipalities use chapter 82 procedures going forward, and the evidentiary standard for ancient public-prescription claims.

The court received argument from both sides and questions from multiple justices; the record—referenced repeatedly in argument—included an 87-page land court decision with detailed factual findings, 1763 layout documents, surveyor records and contemporary amicus briefs from land title and surveying organizations. The SJC's forthcoming opinion will determine whether the 1932 action under the 1924 law constituted a legal discontinuance that extinguished the public right to travel or instead left public access intact while shifting maintenance responsibility.