Old Thompson Road: Accessing interior parcels

A case recently concluded in the Massachusetts Land Court focused on one of Webster's ancient ways known as "old" Thompson Road and highlights one of the complexities of real property rights in New England villages.

The earliest comprehensive map of the Town of Dudley was created in 1795, when it encompassed most of what is now the Town of Webster.  Dudley was a classic New England hilltop village in 1795, with a meeting house on Dudley Hill in the area now dominated by Nichols College.  The major roads radiated from the center of Dudley to provide access to neighboring communities.   The original road to Thompson appears to have begun in Dudley center and run southeast along what is now Dudley Hill Road, Indian Hill Road and Carpenter Road to the French River. After bridging the river it continued along the northerly portion of what is now Ash Street to a point on what is now the "new" Thompson Road near Hubbard Hospital.

Shortly after the 1795 map was prepared, New England began its rapid transition from an agricultural economy to a more industrial economy, resulting in dramatic shifts in population and commerce.  With the shift in economic activity to the villages along the rivers and lakes there was no longer a compelling need for a through route from the old center of Dudley to Thompson, Connecticut, along the pre-colonial route.

Good transportation was essential for both an agricultural and an industrial economy, but it was also a major expense, so early town meetings spent significant amounts of time on issues relating to the layout, acceptance, maintenance and discontinuance of public ways.  Since road maintenance costs consumed a significant portion of municipal budgets, towns regularly discontinued ways that were lightly used or had been replaced by alternate routes.

In 1826, the Dudley town meeting determined that the portion of the "old" Thompson Road between Ash Street and the new Thompson Road was no longer necessary and voted to discontinue it, which meant the Town had no further responsibility for its maintenance.  A new comprehensive map of the Town of Dudley was created in 1830, shortly before the Town of Webster was incorporated as a separate municipality in 1832. On the 1830 map the discontinued portion of "old" Thompson Road has disappeared although several new routes to Thompson, Connecticut are shown.

Discontinuance of a public way eliminates the requirement for the municipality to maintain the way and consequently creates a problem for landowners along the way.  Initially, of course, the fact that the municipality no longer maintains a way, does not result in the way disappearing and many discontinued ways continued to be used as private ways or farm roads and logging roads.  As industrialization in small villages continued and farms were gradually abandoned, use of the discontinued ways necessarily diminished and many deteriorated into cart roads or paths through the woods.

In more recent years, as land values increased dramatically, there has been considerable interest in using discontinued ancient ways for access to interior parcels of land and also to meet the requirement for frontage on a way incorporated into most modern zoning codes.  A real estate developer can significantly reduce his development costs if he can use an ancient way for access to interior land as opposed to constructing an entirely new road that meets contemporary subdivision standards.   Even if the ancient way requires upgrading and paving to meet access requirements, a developer can still realize significant savings over the cost of developing a roadway through raw land.

As a result of the increase in development, there has been a significant amount of litigation over the last several decades concerning what rights, if any, abutting landowners have in discontinued public ways and whether such ancient ways can be used to satisfy the requirements for access and frontage. In the case of "old" Thompson Road the owner of approximately 75 acres of land with frontage on the discontinued section of "old" Thompson Road between Ash Street and Route 395 filed a law suit against a neighboring landowner in an effort to establish a right to use a portion of "old" Thompson Road that passed through the neighboring property for access.  Since the possibility of access to the "new" Thompson Road was cut off by the construction of Route 395, the suit was filed against the abutting land owner to the west.  Unfortunately, the interior landowner failed to establish a right to use the discontinued portion of "old" Thompson Road in the Land Court case and he presumably is left to find access in another location.

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