Read-Kay and Robb Opposition Materials 07-17-20

ROBERT NISLICK
Attorney at Law
188 Oaks Road
Framingham, MA 01702
(508) 405-1238
rob@nislick.com
July 17, 2020
Emily M. Rosa – Sessions Clerk

Land Court
3 Pemberton Square
Boston, MA 02108
Re: Town of Concord v. Neil E. Rasmussen, et al, 17 MISC 000605 (HPS)
Dear Ms. Rosa:
Enclosed please find:
1. The Read-Kay and Robb Defendants’ Opposition to the Town of Concord’s Motion For
Preliminary Injunction
2. The Read-Kay and Robb Defendants’ Memorandum in Opposition to the Town of
Concord’s Motion For Preliminary Injunction
3. Affidavit of Susannah Kay, M.D.
4. Affidavit of Brooks S. Read
5. Affidavit of Leslee W. Robb
6. Affidavit of Robert Nislick
7. Appendix
8. Emergency Motion of Leslee Robb, Russell Robb III, Brooks S. Read, and Susannah Kay
for Speedy Trial Pursuant to G. L. c. 231, § 59F
This matter is presently scheduled for a view on July 20, 2020, at 9:00 A.M., and a hearing at
1:00 P.M.
Yours truly,
/s/ Robert Nislick
Robert Nislick
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
MIDDLESEX, ss. MISCELLANEOUS CASE

CASE NO. 17 MISC 000605 (HPS)
__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
)
v. )
)
NEIL E. RASMUSSEN, ANNA )
RASMUSSEN, BROOKS S. READ, )
SUSANNAH KAY, RUSSELL ROBB III, )
LESLEE ROBB, AND THOMAS WRAY )
FALWELL, TRUSTEES OF THE PIPPIN )
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
THE READ-KAY AND ROBB DEFENDANTS’ OPPOSITION TO THE

TOWN OF CONCORD’S MOTION FOR PRELIMINARY INJUNCTION
NOW COME the defendants Susannah Kay, Brooks S. Read, (the “Read-Kay
defendants”), and Russell Robb III, Leslee Robb, and Thomas Wray Falwell, Trustees of the
Pippin Tree Land Trust (the “Robb defendants”) and hereby oppose the plaintiff Town of
Concord’s motion for preliminary injunction.
In support hereof, defendants rely on the Memorandum in Support of the Read-Kay and
Robb Defendants’ Opposition to the Town of Concord’s Motion for Preliminary Injunction, the
Affidavit of Susannah Kay, M.D., the Affidavit of Brooks S. Read, the Affidavit of Leslee W.
Robb, the Affidavit of Counsel, the Appendix, and all other papers previously filed in this case.
Defendants have also filed Emergency Motion of Defendants Leslee Robb, Russell Robb
III, Brooks S. Read, and Susannah Kay for Speedy Trial Pursuant to G. L. c. 231, § 59F, and
respectfully request that the court hear and allow the same.
The Read-Kay and Robb defendants respectfully request that the Court deny the
plaintiff’s motion for preliminary injunction.
The Read-Kay and Robb defendants respectfully request that the Court hear evidence
from defendants concerning the harm they would suffer in the event that injunctive relief is
granted.
The Read-Kay and Robb defendants also request the following relief:
1. Order that the plaintiff’s motion for preliminary injunction is denied;
2. Order that the defendants may continue to control access to Estabrook Trail
through the entry of a judgment on the merits in this case;
3. Order that this action shall be advanced for a speedy trial pursuant to G. L. c. 231,
§ 59F;
4. Such other and further relief as the Court deems equitable and just.
Respectfully submitted,
SUSANNAH KAY, BROOKS S. READ,

RUSSELL ROBB III, LESLEE ROBB and
THOMAS WRAY FALWELL, TRUSTEES
OF THE PIPPIN TREE LAND TRUST,
By their attorneys,
/s/ Robert Nislick
____________________________________
Robert Nislick, Esq. (BBO # 664414)
P.O. Box 5207
(508) 405-1238
rob@nislick.com
Dated: July 17, 2020
2
__________________________________
Howard M. Cooper, Esq. (BBO # 543842)
Tyler T. Chapman, Esq. (BBO # 637852)
Todd & Weld LLP
One Federal Street
Boston, MA 02110
(617) 720-2626
hcooper@toddweld.com
tchapman@toddweld.com
CERTIFICATE OF SERVICE
I, Robert Nislick, certify that on July 17, 2020, I served a copy of the foregoing document
on counsel for all other parties, by first-class mail to:
Melissa Cook Allison, Esq.

Kevin D. Batt, Esq.
Anderson & Kreiger LLP
50 Milk Street, 21st Floor
Boston, MA 02109
(617) 621-6500
Diane C. Tillotson, Esq.

M. Patrick Moore, Jr., Esq.
Vanessa A. Arslanian, Esq.
Hemenway & Barnes LLP
75 State Street, 16th Floor
Boston, MA 02109
(617) 227-7940
/s/ Robert Nislick
____________________________________
Robert Nislick
3
LAND COURT

__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
)
v. )
)
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
THE READ-KAY AND ROBB DEFENDANTS’ MEMORANDUM IN OPPOSITION TO

THE TOWN OF CONCORD’S MOTION FOR PRELIMINARY INJUNCTION
i. Introduction
Defendants Leslee W. Robb, Russell Robb III, and Thomas Wray Falwell, Trustees of the
Pippin Tree Land Trust (collectively, the “Robbs”), and Brooks S. Read and Susannah Kay (the
“Read-Kays”) respectfully oppose Plaintiff Town of Concord’s motion for preliminary
injunction. The Town has no hope of succeeding on the merits of its claim that the subject
“Estabrook Trail,” which was discontinued in 1932, is a public way, as opposed to defendants’
private property. The Town is also unable to demonstrate any irreparable harm arising from
defendants’ closure and protection of this property. Conversely, enjoining defendants from
preserving their property rights would work extreme and irreparable harm on them. Thus, the
Town’s motion is without merit and should be denied.
In the midst of an historic pandemic, which presents a specific, life-threatening risk of
harm to the defendants, and with the overuse and abuse of Estabrook Trail reaching untenable
levels, the Read-Kays and the Rasmussens made the decision on April 5, 2020, to close the
pedestrian gate at the southern trailhead of Estabrook Trail.
That the Town waited fully two months until the eve of the 4th of July holiday before
filing its motion speaks volumes about the lack of any real emergency here. In addition, the
Town’s motion seeks to enforce rights that it cannot seriously or in good faith suggest it
possesses. The Town’s filing of this motion appears part of a now years-long effort to inflame
what is already the dangerous public safety situation it created beginning two-and-a-half years
ago by filing this suit and releasing statements demonizing the Defendants in the hope that the
Defendants could be bullied into submission. The Town has already dropped its post-1932
prescription claim, which it was forced to recognize was meritless.
As discussed below, the Town’s motion fails on every prong of the preliminary
injunction standard. Indeed, it is based not on documentary proof that locus was laid out by
public authority in the manner prescribed by statute, but upon a false narrative by which the
Town claims that the Defendants acted inappropriately by protecting their own private property
interests. Given the Town’s well-documented pattern of abuse towards the defendants, the Town
comes to this Court with unclean hands and is not entitled to the relief it seeks.
The Town is unable to carry its burden on any of the elements it must establish to
demonstrate entitlement to an injunction. First, and most critically, the Town has no likelihood of
success on the merits of its claim that the portion of Estabrook Trail that abuts the defendants’
2
lots is a public way, both because the Concord Board of Road Commissioners petitioned the
County Commissioners for the County of Middlesex to discontinue this section of Estabrook
Road as a public way in 1932, under G. L. c. 82, § 32A (1924), and because it had never been
laid out by public authority in the manner prescribed by statute. Second, the Town has made no
showing of any irreparable harm. The Town’s assertion of harm is based on comments it has
received from members of the general public whom it does not represent. Third, the balance of
the harms clearly weighs against the issuance of an injunction. Injunctive relief would subject
the defendants to all of the harm they have been suffering for years, as it has been exacerbated by
the pandemic. The public interest also favors denying an injunction where the public clearly has
an interest in protecting the right of citizens to protect their property for health and safety
reasons.
Therefore, as argued more fully below, the Court should deny the Town’s motion
because (1) the Town cannot show a likelihood of success on the merits because the portion of
Estabrook Trail which abuts the defendants’ lots is not a public way; (2) the Town has made no
showing that it will suffer irreparable harm if the Court denies its motion; (3) the balance of the
harms favors denying the injunction; and (4) injunctive relief is contrary to the public interest.
ii. Facts
This case concerns whether Estabrook Trail in Concord is a public way. See Kay Aff. ¶
5; Robb Aff. ¶ 29. Estabrook Trail is an unpaved dirt trail which runs northerly from a certain
point in Concord, approximately two miles, towards the Carlisle town line. See Kay Aff. ¶ 5.
The southern trailhead is adjacent to registered land owned by the Read-Kays, on the easterly
side of the trail, and by registered land owned by Neil and Anna Rasmussen, on the westerly side
of the trail. See id., ¶ 5. Several weeks prior to Concord’s filing of this case, in 2017, the
3
Rasmussens replaced a chain across Estabrook Trail with a gate, at its southern trailhead. See id.,
¶ 15. Estabrook Trail is occasionally referred to as the discontinued portion of Estabrook Road.
See id., ¶ 15. The Rasmussens and the Read-Kays maintain the gate, which controls pedestrian
access to a portion of Estabrook Trail. See id., ¶ 37.
There is no evidence that locus was ever laid out by any public authority in the manner
prescribed by statute. Nor is there evidence of a dedication and acceptance prior to 1846. The
Town cannot prove a continuous twenty-year period of use or maintenance of locus.
On April 13, 1932, counsel for three Concord citizens, Raymond Emerson, Stedman
Buttrick, and Russell Robb, who is Russell Robb III’s father, requested the Concord Board of
Road Commissioners to petition the County Commissioners for the closing of a certain portion
of Estabrook Road, from a point near where the pavement now ends, northerly to the Carlisle
line, as a public way. (Counsel Aff. ¶ 4, Ex. 3).
The “reasons for this being that the road is almost impassable and is used only by
picnickers and is a serious fire hazard. There are no houses on this stretch of road in Concord.”
(Id. ¶ 5, Ex. 3). The Board of Road Commissioners voted to grant the request. (Id. ¶ 6, Ex. 3).
Then, the Concord Board of Road Commissioners filed a written petition the County
Commissioners for the County of Middlesex. (Id. ¶ 7, Ex. 3).
The petition stated in part,
“that Estabrook Road . . . is a public way, and that common convenience and
necessity no longer require that such way shall be maintained in a condition
reasonably safe and convenient for travel from a point on said Estabrook Road, at
the entrance to R. Emerson driveway . . . to the boundary line between the Town
of Concord and the Town of Carlisle, on said Estabrook Road; that said way from
said point . . . has for a long period ceased to be in general public use; that there
are no residences served by that portion of said way sought to be discontinued as
a public way; and that it would be an inordinate and unreasonable expense upon
said Town of Concord to keep said way in a condition reasonably safe and
convenient for travel.
4
WHEREFORE, the said Road Commissioners prey that the County
Commissioners adjudicate that said way shall hereafter be a private way, and that
the Town of Concord shall no longer be bound to keep the same in repair, upon
condition that the said Town give sufficient notice to warn the public against
entering thereon by the posting of adequate notice or notices where such way
enters upon or unites with an existing public way.” (Id. ¶ 8, Ex. 3).
On June 7, 1932, the Road Commissioners of the Town of Concord appeared at a
meeting of the County Commissioners for the County of Middlesex, and prayed,
“that a portion of Estabrook Road, in said Concord, be discontinued as a public

way, and thereafter be a private way, And at the time of said view and hearing, no
person interested appearing to object to the discontinuance of a portion of said
highway as a public way, said Commissioners found that common convenience
and necessity no longer require such way to be maintained in a condition
reasonably safe and convenient for travel, and adjudicated that said way shall
hereafter be a private way . . . .” (Id. ¶ 9, Ex. 3).
On June 29, 1932, the Commissioners met, and on July 9, 1932, made final return that,
“in accordance with said petition determine that common convenience and
necessity no longer require the way . . . to be maintained in a condition reasonably
safe for travel, and adjudicate that said way shall hereafter be a private way, and
that the town shall not longer be bound to keep the same in repair. . . . And said
Commissioners further provide that in accordance with Chapter 289 pf the Acts of
1924 this junction shall take effect provided that sufficient notices to warn the
public against entering on said way are posted where said road enters upon or
unites with the existing public way at said Emerson driveway, and also at the
town line between Carlisle and Concord.” (Id. ¶ 10, Ex. 3).
The Robb defendants have a history of family ownership of a portion of the Trail and
extensive lands in its vicinity for more than one hundred years. See Robb Aff. ¶ 4. Defendants
Susannah Kay and Brooks Read, who are husband and wife, have owned a portion of the Trail
and the home and farm nearby for 25 years. Mr. Read’s mother purchased the property in 1983,
and owned it until 1996, when the Read-Kays bought it from her estate. See Read Aff. ¶¶ 6, 8.
As Mrs. Robb, Dr. Kay, and Mr. Read each aver, for decades, they and their neighbors, the
5
Rassmussens, allowed members of the public to use the Trail. See Kay Aff. ¶¶ 6, 41; Read Aff.,
¶ 7, 10; Robb Aff. ¶ 10.
Unfortunately, in the last decade, things changed considerably – not only do many more
people enter onto defendants’ lands, but they do so with the attitude of people who are entitled to
be there and with no sense of respect for defendants or their property. See id., ¶ 8. As a result,
even defendants’ undisputed private property interests on adjacent lands have been repeatedly
interfered with by trespasses, vandalism, crime, drug activity, threats of arson, public urination,
off-leash dog walking, and the refusal of persons using the trail to follow rules. Defendants also
suffer a grave fire risk. See id. All of these circumstances are detailed in their affidavits.
As also explained in these affidavits, in addition to asserting a claim to the Trail without
any valid legal basis to do so, the Town has actively refused to protect defendants’ property
rights in their non-trail lands. See generally Affidavit of Susannah Kay; Affidavit of Brooks
Read; Affidavit of Leslee Robb. Specifically, the Town, in concert with citizen groups, has
actively promoted the public’s use of Estabrook Trail, falsely portraying it as a public resource.
See Kay Aff. ¶ 17. When citizens have used Estabrook Trail and then proceeded to trespass on
and abuse Defendants’ abutting property, the Town has declined to act and, instead, actively
encouraged its officials to refuse to enforce laws and ordinances such as those relating to
trespassing, leashing dogs, and vandalism. See id., ¶ 33.
Matters came to a head and grew exponentially worse when the COVID-19 pandemic
struck. Despite Governor Baker’s repeated pleas that people stay home and social distance,
activity at the southern trailhead near the Read-Kay house increased dramatically throughout
March 2020, and into April. See id., ¶ 9. People gathered on their property without masks,
without social distancing, and without regard to how far towards our home they would wander.
6
See id. Dr. Kay is a physician who deals daily with COVID-19 patients and, due to Defendants’
increased concern about COVID-19 exposure, the Read-Kays, along with other defendants,
including the Robbs, who are elderly and dealing with health issues, decided to close access to
our trail to the public on April 5, 2020. See id. Since that time, the pressure on the Robb-Read-
Kays from the Town and citizen groups have intensified, vilifying these citizens for simply
attempting to protect their property. See id., ¶¶ 45-52. All of these matters are extensively
detailed in their affidavits.
Since the Read-Kays and the Rasmussens closed the gate to the Trail, the Town has
actively undermined their efforts to protect themselves from other citizens who intentionally
damage their property. See Kay Aff. ¶ 46. After Dr. Kay and her husband wrote to the Town
regarding vandalism occurring on their property, on April 23, 2020, the Concord Select Board
published a statement which falsely attempted to place all of the blame for this legal dispute in
the Read-Kays and their neighbors. See id., ¶ 48, Ex. E. The letter also told members of the
town it would not enforce rules against trespassing on their land. See id.
Concord’s statement subjected defendants to serious harm because it proclaimed that
their actions in serving no-trespass notices and in closing the trail had “no legal effect.” See id.,
¶ 49. The Select Board has stated that, “the Town will not take action to prevent the public from
using the unpaved portion of Estabrook Road.” See id. Since the Town’s statement, Defendants
have encountered people trespassing on their land who expressly stated that they did so after
reviewing the Town’s statement indicating that the Town would not enforce our “no trespass”
notices. See id., ¶¶ 49-50.
7
iii. Argument
I. THE STANDARD ON AN APPLICATION FOR PRELIMINARY INJUNCTION.
“To succeed in an action for a preliminary injunction, a plaintiff must show (1) a
likelihood of success on the merits; (2) that irreparable harm will result from denial of the
injunction; and (3) that, in light of the plaintiff’s likelihood of success on the merits, the risk of
irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the
injunction.” Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001),
citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). A court must also
“examine whether the public interest would support entering an injunction or, in the alternative,
whether an injunction would adversely affect the public.” Le Clair v. Norwell, 430 Mass. 328,
337 (1999). “[T]he significant remedy of a preliminary injunction should not be granted unless
the plaintiffs had made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ.,
440 Mass. 752, 762 (2004).
“[W]hen asked to grant a preliminary injunction, the judge initially evaluates in
combination the moving party’s claim of injury and chance of success on the merits. If the judge
is convinced that failure to issue the injunction would subject the moving party to a substantial
risk of irreparable harm, the judge must then balance this risk against any similar risk of
irreparable harm which granting the injunction would create for the opposing party. . . . Only
where the balance between these risks cuts in favor of the moving party may a preliminary
injunction properly issue.” Packaging Indus. Group, Inc., 380 Mass. at 616-17.
As argued below, the Town is unable to carry its burden as to any of these factors.
8
II. THE TOWN OF CONCORD CANNOT SHOW A LIKELIHOOD OF SUCCESS
ON THE MERITS BECAUSE THE PORTION OF ESTABROOK TRAIL WHICH
ABUTS THE DEFENDANTS’ LOTS IS NOT A PUBLIC WAY.
The Town’s motion should fail because, most fundamentally, it is unable to establish any
likelihood of success on the merits of its claim that Estabrook Trail is a public way.
“An existing way acquires status as a public way in one of three ways: (1) a laying out
by public authority, in the manner prescribed by statute; (2) prescription; and (3) prior to 1846,
a dedication by the owner to public use, permanent and unequivocal, coupled with an express or
implied acceptance by the public.” McLaughlin v. Marblehead, 68 Mass. App. Ct. 490, 495
(2007) (emphasis added). “Whether a way is private, or has been accepted by a city or town as
public, is not a novel question in the Commonwealth.” Miguel v. Fairhaven, Land Court
Miscellaneous Case No. 16 MISC 000375 (RBF), Memorandum and Order at 1, (Foster, J.)
(Aug. 30, 2017). “When the fact of a public way is alleged by one party and disputed by the
adversary the burden of proof ultimately falls on the party asserting the fact.” Witteveld v.
Haverhill, 12 Mass. App. Ct. 876, 877 (1981). Here, as the party claiming that Estabrook Trail is
a public way, the town “bears the burden of proof on both the location of the ancient way and its
status as a public way.” Domina v. Westfield, Land Court Miscellaneous Case No. MISC 13-
476775 (Foster, J.) (May 9, 2018) (emphasis added).
A. If Estabrook Trail ever was a public way, it was discontinued pursuant to G.

L. c. 82, § 32A (1924), and is now a private way. The act of discontinuing the
road under this statute results in a private way, with no remaining public
rights.
In trying to carry its burden of showing it is likely to succeed on the merits of its claim
that Estabrook Trail is public, the Town is unable to surmount even the very hurdle it faces:
Estabrook Trail was discontinued in 1932. In that year, any public nature of the way was firmly
and finally discontinued pursuant to G. L. c. 82, § 32A (1924). Specifically, as described above,
9
in response to a request from the defendants’ predecessors in title, the Concord Board of Road
Commissioners petitioned the County Commissioners for the County of Middlesex to
discontinue Estabrook Trail (the unpaved portion of Estabrook Road) as a public way. 1 The act
of discontinuing the road under this statute resulted in a private way with no remaining public
rights. See G.L. c. 82, § 32A (1924). G. L. c. 82, § 32A (1924), provided a valid method for
discontinuing Estabrook Road, which was additional or alternative to a town voting to
discontinue the way pursuant to G. L. c. 82, § 21. The statute provided that the county
commissioners may, “adjudicate that said way shall thereafter be a private way and that the town
shall no longer be bound to keep the same in repair.” See G. L. c. 82, § 32A (1924). By
operation of the statute, then, any public nature of the way extinguished and it became private
terminating any easement of travel that the public might have had previously. See id.
In a vain effort to avoid the operation of this statute, the Town incorrectly argues that,
after its discontinuance, Estabrook Trail somehow became a “public access private way” or a
1 In petitioning for and adjudicating the discontinuance, the Road Commissioners and the County Commissioners
followed the procedures of G. L. c. 82, § 32A (1924), St. 1924, c. 289, “An Act Relative to the Discontinuance of
Certain Ways as Public Ways”, available at
https://archives.lib.state.ma.us/bitstream/handle/2452/67017/1924acts0289.pdf?sequence=3&isAllowed=y.
“Both the Town’s Road Commissioners and the County Commissioners followed all of the procedures prescribed by
that law, and borrowed heavily from its text.” (Compl. ¶ 60).
St. 1924, c. 289, provided:
“An Act relative to the discontinuance of certain ways as public ways.

Be it enacted, etc., as follows:
Chapter eighty-two of the General Laws is hereby amended by inserting after section thirty-two the
following new section : — Section 32A. Upon petition in writing of the board or officers of a town having
charge of a public way, the county commissioners may, whenever common convenience and necessity no
longer require such way to be maintained in a condition reasonably safe and convenient for travel,
adjudicate that said way shall thereafter be a private way and that the town shall no longer be bound to keep
the same in repair, and thereupon such adjudication shall take effect; provided, that sufficient notice to
warn the public against entering thereon is posted where such way enters upon or unites with an existing
public way. This section shall not apply to ways in cities. Approved April 24, 1924.”
See G. L. c. 82, § 32A (1924).
10
“statutory private way” to which the public has access even though a municipality may not
maintain it. (See Plaintiff’s Mem. at 15-16). Reading the 1924 statute in this way, however,
would violate the most basic principles of statutory construction by altering the plain meaning of
the words used in the statute. See Martinez v. Lynn Housing Auth., 94 Mass. App. Ct. 702, 706
(2018) (statutory construction must “give effect, if possible, to every clause and word of a
statute”). It would also render the statutory clause “adjudicate that said way shall thereafter be a
private way,” inoperative and superfluous, while placing an overemphasis on the clause, “the
town shall no longer be bound to keep the same in repair.” G. L. c. 82, § 32A (1924). This, too,
would run contrary to cardinal rules of statutory interpretation. See Shirley Wayside Limited
Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012) (“We endeavor to
interpret a statute to give effect to all its provisions, so that no part will be inoperative or
superfluous.”). Thus, the Town’s strained interpretation of the statute is incorrect as the Court
has previously and expressly held.
The discontinuance terminated any easement of travel that the public might have had
previously had. See Nylander v. Potter, 423 Mass. 158, 162 (1996) (rejecting the Appeals
Court’s theory of a so-called “abutter’s easement,” and the Superior Court’s theory of a “public
access” private way as contrary to settled Massachusetts law).
Concord incorrectly argues that, “the discontinuance documents explicitly identified the
road as a “public way,” strongly suggest[ing] that the public had a right to access the Road prior
to that time.” (See Plaintiff’s Mem. at 13). To the contrary, while a discontinuance may permit
an inference that a road was a public way, it does not compel that inference. See Rivers v.
Warwick, 37 Mass. App. Ct. at 595. Indeed, “the discontinuance may have signified no more
than an abundance of caution against the possibility that a public way did exist.” Witteveld, 12
11
Mass. App. Ct. at 877. See Stone v. Garcia, Appeals Court Case No. 2009-P-0561 (Sep. 23,
2010) (affirming judge’s refusal to infer that discontinuance of maintenance on road resulted in a
statutory private way with public access intact). 2
Thus, the County Commissioners’ 1932 discontinuance of Estabrook Road under G.L. c.
82, § 32A (1924) conclusively establishes that Estabrook Road has been adjudicated a private
way. The Town has no legal or factual grounds for demonstrating otherwise. Therefore, the
Town has no likelihood of succeeding on the merits of its claim that Estabrook Trail is somehow
public or private with a public right of access, so the Court should deny its motion.
B. The town cannot show that Estabrook Trail was ever a public way.
Given that the town is unable to overcome the discontinuance of Estabrook Road in 1932,
the town resorts to a series of other arguments that this is a public way, each of which fails. To
be clear, even were any of these arguments valid, the Town still cannot overcome the fact that
any prior public rights in Estabrook Trail were extinguished by the 1932 discontinuance. Even
so, the town’s various efforts to establish that Estabrook Trail was once public also fail.
“An existing way acquires status as a public way in one of three ways: (1) a laying out
by public authority, in the manner prescribed by statute; (2) prescription; and (3) prior to 1846,
a dedication by the owner to public use, permanent and unequivocal, coupled with an express or
implied acceptance by the public.” McLaughlin v. Marblehead, 68 Mass. App. Ct. 490, 495
(2007) (emphasis added). The Town is unable to show that Estabrook Trail satisfies any of these
three alternative methods for establishment of a public way.
2 As further confirmation that the Town’s interpretation of the 1924 version of G. L. c. 82, § 32A (1924) is incorrect
the Court may contrast the 1924 statute with subsequent versions of the statute. In 1983, the Legislature enacted St.
1983, c. 136, which struck out the original version of the statute. See St. 1983, c. 136, available at
https://archives.lib.state.ma.us/bitstream/handle/2452/39242/1983acts0136.pdf?sequence=3&isAllowed=y. Unlike
the 1924 version, under the 1983 version, for the first time, actions under § 32A were no longer referred to as a
“discontinuance,” and were no longer an adjudication of a “private way.”
12
Circumstantial evidence has never been sufficient to show a way is public, by means of ancient
maps or other records, without showing the means by which the way became public.
The fact remains that two-and-three-quarters years into this case, Concord has failed to
show a laying out by public authority in the manner prescribed by statute; Concord abandoned its
post-1932 prescription claim; Concord has no reasonable expectation of proving pre-1932
prescription; and there was no dedication or acceptance prior to 1846. See McLaughlin, 68 Mass.
App. Ct. at 495.
1. Concord fails to identify any statute, and fails to demonstrate compliance

with any statute in connection with the laying out of Estabrook Road. Since
Estabrook Road was not laid out “in the manner prescribed by statute”, the
Town does not show a likelihood of success on the merits.
Concord argues, “So at the end of the day, what our expert report shows is that there is --
that this road existed, again, before the statutory scheme.” (See Allison Aff., Tab 6, Status
Conference, May 14, 2020 at 18). The laying out of a way before a statutory scheme existed
does not make it public way. It amounts to nothing. Concord’s memorandum conspicuously
fails to demonstrate that any statute was followed in connection with laying out Estabrook Road.
(See Plaintiff’s Mem. at 11-14). Likewise, the Affidavit of A.R. Vannozzi fails to demonstrate
that any statute was followed in connection with laying out Estabrook Road.
An existing way acquires status as a public way by a laying out by public authority in the
manner prescribed by statute. “If a road has never been dedicated and accepted, laid out by
public authority, or established by prescription, such a road is private.” Barry v. Planning Bd. of
Belchertown, 96 Mass. App. Ct. 314, 318 (2019), quoting W. D. Cowls, Inc. v. Woicekowski, 7
Mass. App. Ct. 18, 19 (1979). “[T]here can be private ways, which are ‘defined ways for travel,
not laid out by public authority or dedicated to public use, that are wholly the subject of private
ownership,’ Opinion of the Justices, 313 Mass. 779, 782 (1943), which are open to public use
13
‘by license or permission’ (id. at 783) of the owner; however, such use ‘may be terminated at any
time at the will of the owner’ (id. at 785).” W. D. Cowls, Inc., 7 Mass. App. Ct. at 19-20.
As is surely not lost on this Court, the Town’s motion relies entirely on ancient
circumstantial evidence to try to argue that Estabrook Trail must have been laid out by a public
authority in the past. Concord resorted to doing so because, after undertaking an exhaustive
search for the documents it would need to prove that locus had been laid out, its investigation
came up short. The fact that the Town filed the lawsuit anyway strongly suggests that it is not
based on any good grounds. If the Town had any documentary evidence to show that locus had
been laid out by public authority in the manner prescribed by statute, it would have attached
those documents as exhibits to its complaint, but it did not. Instead, it relied on two experts to
help it concoct arguments based on historical documents and circumstantial evidence.
The Town’s incorrect belief that it may advance such arguments is due to its misplaced
reliance on dicta contained in Fenn v. Middleborough, 7 Mass. App. Ct. 80 (1979), that
circumstantial evidence can be used to show “that a way is public, as, for example, by means of
ancient maps or other records, without showing the means by which the way came to be public.”
See Fenn v. Middleborough, 7 Mass. App. Ct. 80, 87 (1979). This dicta has never been applied
in any case to establish a public way, and runs contrary to Supreme Judicial Court cases which
came both before and after Fenn. In any event, “ancient maps are equally consistent with the
ways’ having been private during the one . . . years of their proven existence.” See id. at 87. See
also W. D. Cowls, Inc., 7 Mass. App. Ct. at 20 (series of deeds and 1830 map not conclusive to
show that road was public). 3 Consequently, the Town’s resort to circumstantial evidence does
not aid its cause.
3 Concord cites Fenn in support of its argument that, “ways can be shown to be public ‘on the basis of a factual
inference from the evidence taken as a whole that the ways in question were laid out at some anterior time and that
14
More fatally for the Town’s cause, its experts offer opinions that are demonstrably
inaccurate and unreliable. For example, the Town proffers the Affidavit of A.R. Vannozzi.
Although Vannozzi is a professional land surveyor (see Vannozzi Aff. ¶ 2), he did not actual
survey Estabrook Trail (see Vannozzi Dep Tr. at 48). As a result, the term “area of interest,”
which he uses in his Affidavit, appears to be entirely made up. No case has ever determined that
a way was public because it was within an “area of interest.” No case even references the term
“area of interest”, and the Town does not cite to any. Additionally, the Manual of Instructions for
the Survey of Lands and Preparation of Plans to be Filed in the Land Court (2006) (the
“Instructions of 2006”), does not recognize the concept of an “area of interest.” The Court should
decline to credit Vannozzi’s affidavit for this reason alone. The affidavit and opinion have
numerous additional flaws, as detailed below.
a. The 1763 layout is not locus.
In his effort to suggest that Estabrook Road was properly laid out as a public way,
Vannozzi relies upon a 1763 layout. Specifically, Vannozzi opines in his affidavit that the
“Estabrook Road Area of Interest (AOI) . . . had been laid out or otherwise established as a
public way[.]” (See Vannozzi Aff. ¶ 3). He concludes that, “the entirety of the Estabrook Road
AOI as shown on the schematic at Tab 2 was established as a public way no later than 1763[.]”
(See Vannozzi Aff. ¶ 4). Critically, however, the 1763 layout is not locus and is otherwise
unhelpful to the Town, as is obvious from a close review of Vannozzi’s affidavit and
attachments, which reveals the following:
• Vannozzi states that he “identified a formal county layout dated December 13, 1763, in
the records of the Middlesex County Court of General Sessions that described landmarks
and parcels that correspond to what is currently the northern two-thirds portion of the
the record thereof has been lost.” (See Plaintiff’s Mem. at 12). Mr. Whelan testified, however, that he is not aware
of the loss of records. (See Whelan Dep. Tr. at 161-162).
15
Estabrook Road AOI.” (See Vannozzi Aff. ¶ 5). Locus, however, is not in the northern
two-thirds portion of the Estabrook Road AOI. This is significant because, the Town’s
motion seeks to enjoin the defendants from: “1. Locking or closing the pedestrian gate
near the entrance to the unpaved portion of Estabrook Road.” (See Plaintiff’s Proposed
Order at 2). Indisputably, the pedestrian gate near the entrance to the unpaved portion of
Estabrook Road is not in the northern two-thirds portion of the Estabrook Road AOI.
Rather, it is near the southernmost portion of the Estabrook Road AOI, very close to the
southernmost point where Estabrook Road was discontinued in 1932. Vannozzi, then, is
obviously incorrect to use the 1763 layout to form opinions concerning locus. 4
• Vannozzi ignores the fact that the so-called 1763 layout is not one purported layout, but
two alternative purported layouts. (See Vannozzi Aff., Tab 3). Vannozzi’s affidavit
ignores this fact.
• The Vannozzi affidavit fails to match the description contained in the 1763 layout with
any description of the defendants’ lots. Specifically, nothing in the Vannozzi affidavit
demonstrates that he performed a title examination of the Read-Kays’ land, or of the
Pippin Tree Land Trust’s land, or of the Rasmussens’ land back to 1763. Because
Vannozzi failed to trace the defendants’ chains of titles back to 1763, he is unable to
show that 1763 layout is in the same location as, or near, where the trail exists today.
• Vannozzi states that he made two site visits, (See Vannozzi Aff. ¶ 4), but fails to
demonstrate that he found any of the natural, artificial, or record monuments 5 described
in the 1763 layout. Vannozzi avers: “During my site visit, I identified the location of the
earthen dam called out in the 1763 Layout and referenced in the 1697 Division of the
Twenty Score, over which Estabrook Road now passes.” (See Vannozzi Aff. ¶ 7). An
earthen dam does not exist and never existed on any portion of Estabrook Road adjacent
to any of the defendants’ lots, however.
• Assuming that Vannozzi had prepared a Land Court Survey of the “Estabrook Road
AOI,” such a survey could not possibly have noted any monument identified in the 1763
layout as “found”, “set”, “disturbed”, “found-not-located” or “record.” See Instructions of
2006, § 2.1.3.5.7.1. Vannozzi cannot possibly certify that he has located any of the
monuments referenced in the 1763 layout, and he cannot possibly prepare a plan which
depicts these monuments and which certifies that the plan was made in accordance with
the Land Court Instructions. See Instructions of 2006, § 2.1.6.1; Harris v. Ward, Land
4 Vannozzi also states that the “southern-most point of the 1763 layout (south of what is now identified as Mink
Pond on Tab 2) runs by its terms ‘to the Dam at David Browns Land then as the Road is now trod to a Town Way
thro’ said David Brown’s Land. In 1763, David Brown owned land known as the Oak Swamp Meadow, some or all
of which has since been flooded to become Mink Pond, shown on the map in Tab 3.” (See Vannozzi Aff. ¶ 6). Mink
Pond is located on land owned by the President and Fellows of Harvard University, and is located approximately
2,440 feet north of the pedestrian gate that defendants closed on April 5, 2020. (See Vannozzi Aff., Tab 2).
5 “A natural monument includes features such as trees, lakes, boulders, ledges, or the like. An artificial monument
(or bound) is a man-made feature meant to perpetuate the location of a point, line or boundary, such as fences, stone
walls, posts, stakes, stone monuments, or other physical objects placed in the ground intended to be boundary
marks.” Instructions of 2006, § 2.1.3.5.1.
16
Court Case No. 00 MISC 262137 (KFS) Decision at 9-10 (Scheier, J.) (Sep. 27, 2018)
(section of road not a public way where plaintiff’s expert found none of the monuments
referenced in the description of a 1772 way on the ground, coupled with the fact that a
metes and bounds description of the 1772 way did not match descriptions of plans
admitted in evidence).
• Additionally, the 1763 layout is not reliable to identify Estabrook Road because it does
not describe the way as running in any particular direction. See Cross v. Goshen, Land
Court Case No. 16 MISC 000675 (RBF), Memorandum and Order at 8 (Foster, J.) (Mar.
12, 2018) (layout of stub which plaintiff asserted was a public way should have described
the road as running in a “northerly and northeasterly” or “easterly” direction).
In addition to these flaws, the Vannozzi affidavit states: “Although the 1763 layout does
not identify the precise southern boundary of David Brown’s land, the 1763 layout states: ‘ . . .
then as the Road is now trod to a Town Way thro’ said David Brown’s Land.’” (See Vannozzi
Aff. ¶ 6). Vannozzi opines that: “The proper interpretation of the call ‘to a Town Way’ makes it
clear that the 1763 layout continues to ‘a Town Way’6 must be either within David Brown’s land
or beyond it, (presumably) southerly.” (See Vannozzi Aff. ¶ 6). This is conjecture on Vannozzi’s
part. There is, thus, nothing reliable in Vannozzi’s statement to assist the Town in proving that
locus is a public way.7 Just as critically, Vannozzi provides no information concerning whether
this “town way” was established by public authority in the manner prescribed by statute. 8
Therefore, Vannozzi’s reliance on the 1763 layout is utterly unhelpful to the Town.
6 As our case law had made clear, a reference to a “town way” does not suffice to establish a laying out or that the
way is public. “Our cases have expressed some doubt whether the use of such terms as ‘town road’ in old deeds
suffices by itself to establish a laying out.” See Rivers v. Warwick, 37 Mass. App. Ct. 593, 596 (1994). “References
to roads in deeds to property do not establish that the road is public.” Cross v. Goshen, Land Court Case No. 16
MISC 000675 (RBF), Memorandum and Order at 10 (Foster, J.) (Mar. 12, 2018).
7Vannozzi guesses as to the location of this “town way”, as either: a) within David Brown’s land, or b) beyond it.
Vannozzi presumes the way was located southerly. Vannozzi speculates that the “town way” to which the layout
continued was a “road through the Harris Farm.” (See Vannozzi Aff. ¶ 8).
8 Moreover, Vannozzi is quoting from the alternative purported layout, that is the other way that the committee
discovered, “that will be much more advantageous to the Petitioners and less detrimental to private Property and
more agreeable to all Parties.” (See Vannozzi Aff., Tab 3). The document shows that the alternative layout was
accepted, “on Condition that the Said Petitioners give the Land for the Road thro' their own Land and on no others”.
(See Vannozzi Aff., Tab 3). Vannozzi provides no evidence that the petitioners satisfied the condition that they give
the land through their own land.
17
b. The 1697 Division of the Twenty Score and other ancient
documents do not show that Estabrook Road is a public way.
Vannozzi’s references to the “1697 Division of the Twenty Score” (see Vannozzi Aff. ¶¶
7-8), which describes certain “highways,” also do not support Concord’s arguments that
Estabrook Road, and in particular locus, is a public way. (See Vannozzi Aff., Tab 4 at
CONCORD_0003541, 0003543, 0003549). Any such highways that may have been created
pursuant to the 1697 Division of the Twenty Score are not public ways because they were not
created in the manner prescribed by statute and the Town has not identified any such statute.
Indeed, in his deposition, Vannozzi acknowledged that, “the concept of the proprietors’
ways predated what we think of the modern concept of a public way.” (See Vannozzi Dep. Tr. at
122-123). In addition, the people who effectuated the 1697 Division of the Twenty Score, (see
Vannozzi Aff., Tab 4 at CONCORD_0003541), were private citizens, not the same people as the
selectmen of Concord. The Town has offered no evidence that these landowners had the
authority to create a public way or that they even intended to create one. Nothing suggests that
these landowners appointed highways for the “use and conveniency” of anyone other than
themselves. (See Vannozzi Aff., Tab 4, CONCORD_0003549).
Vannozzi also relies on other ancient documents, including a 1730 deed and a 1754 Plan
of Concord Village. (See Vannozzi Aff., Tabs 5 and 6). Notably, locus does not appear on the
1754 map, however. The so-called “Estabrook Road AOI” is not shown in any manner on the
1754 map. (See Vannozzi Aff., Tab 6). The fact that the 1754 map does not depict the
“Estabrook Road AOI” undercuts Vannozzi’s theory that a two-rod road, supposedly existing,
reserved, or created pursuant to the 1730 deed, “through the Harris Farm is likely the southern
portion of the way now known as Estabrook Road.” (See Vannozzi Aff. ¶ 8).
18
If a town way ran through locus in 1730, then it likely would have been shown on a map
of the same area from 1754. Since the map from 1754 does not show a town way which
purportedly ran through locus in 1730, the Town has no reliable facts to show that the “town
way” referenced in the 1730 deed is locus. Additionally, the 1754 map appears to have been
drawn by a private landowner, not by any governmental entity, and therefore is not reliable to
support an argument that any way shown on the 1754 map is public. Even if the Town had
commissioned the preparation of the 1754 map, the map is not a layout by public authority in the
manner prescribed by statute. See Fenn v. Middleborough, 7 Mass. App. Ct. 80, 87 (1979)
(“ancient maps are equally consistent with the ways having been private during the . . . years of
their proven existence”); Cross v. Goshen, Land Court Case No. 16 MISC 000675 (RBF),
Memorandum and Order at 9 (Foster, J.) (Mar. 12, 2018) (“Without additional evidence
connecting the Stub to a layout by public authority, the Stub cannot be recognized as a public
way.”). As a result, the 1754 map does nothing to advance the Town’s case.9 The Town is thus
unable to show any prior laying out of the Trail as a public way.
2. Concord cannot establish that Estabrook Road became public by

prescription.
Concord also does not have a likelihood of success on its claim that Estabrook Trail
became public by prescription. “To acquire a prescriptive easement over ‘land located within its
limits for a specific public purpose,’ a municipality must demonstrate (1) ‘unexplained use for
more than twenty years which is open, continuous, and notorious,’ and (2) ‘proof sufficient to
9Vannozzi also references an assignment in 1764 from the Selectmen of Concord to the Surveyors of Highways and
Bridges, which is also of no effect. (See Vannozzi Aff. ¶ 10, Tab 7). But see, e.g., Rivers v. Warwick, 37 Mass.
App. Ct. 593, 596 (1994) (evidence of town maintenance of roads “did not justify a finding that the roads were
public”); Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487, 489 (1969) (no public way had been
established by prescription despite facts that town listed road as a public way, or that town plowed snow on the way,
scraped the way every other year, and occasionally cut or sprayed the brush along its length).
19
satisfy a trier of fact that the municipality has exercised dominion and control over the land in its
corporate capacity through authorized acts of its employees, agents or representatives to conduct
or maintain a public use thereon for the general benefit of its inhabitants.’” Daley v.
Swampscott, 11 Mass. App. Ct. 822, 827, 829 (1981).” Athanasiou v. Board of Selectmen of
Westhampton, 92 Mass. App. Ct. 94, 96 (2017) (emphasis added).
Concord’s assertion of a prescriptive easement based on its actions prior to 1932 is
devoid of merit.10 After reviewing annual town reports of the Town of Concord, the Town could
not produce a consistent twenty-year period in which the town report reflected repairs or
improvements or maintenance to Estabrook Road. The Town’s witness pursuant to Mass. R.
Civ. P. 30(b)(6), former town manager Christopher Whelan, testified in this regard: “Correct.
There’s no record that we are aware of indicating that consistently over a 20-year period,
expenditures were made on an annual basis.” (Whelan Dep. Tr. at 355-356). The Town is
obviously bound by all of Mr. Whelan’s testimony pursuant to Mass. R. Civ. P. 30(b)(6).11 This
testimony confirms conclusively that the Town is without any evidence to support its
prescription claim, including in the following respects:
• Although the Town alleged in its Complaint that “[t]he town repaired and improved the
Road in 1890, 1892, 1895, 1896, and 1906[,]” Compl. ¶ 41, Mr. Whelan did not know
where on Estabrook Road, the town expended money to make repairs and improvements.
(Whelan Dep. Tr. at 350-351). The failure to establish the precise location of a way is one
reason that a prescriptive easement will not come into existence. See Stone v. Perkins, 59
Mass. App. Ct. 265, 268 (2003).
10On November 27, 2019, the parties “agree[d] and stipulate[d] to the dismissal, with prejudice, of the Town of
Concord’s claim that the Town and/or the public obtained prescriptive rights to use the discontinued portion of
Estabrook Road following the 1932 Discontinuance of said portion of Estabrook Road (the ‘Post-1932 Prescription
Claim’).” (See Stipulation of Dismissal of the Town of Concord’s Post-1932 Prescription Claim).
11“Once an individual has been designated as the entity’s Rule 30(b)(6) witness, the testimony of that witness binds
the entity on that issue.” Hon. Peter M. Lauriat et al., 49A Mass. Prac., Discovery § 8:17 (May 2020 update). “The
testimony provided by the corporate representative at a Rule 30(b)(6) deposition binds the corporation.” SiOnyx,
LLC v. Hamamatsu, No. 15-13488, 2017 WL 8236153, at *2 (D. Mass. Oct. 13, 2017).
20
• Mr. Whelan did not have any knowledge or information about whether any abutting
landowner to Estabrook Road objected to any maintenance that was performed by the
town prior to 1932. (Whelan Dep. Tr. at 360-361). He also did not have any information
on whether the Town’s maintenance on Estabrook Road prior to 1932 was adverse to any
abutter to Estabrook Road. (Whelan Dep. Tr. at 361).
• Mr. Whelan testified that the Town is not aware of any independent knowledge of the use
of Estabrook Trail in the 17th, 18th, and 19th centuries, other than that reflected in the
historic records and secondary sources referenced in paragraph 18 to the Complaint.
(Whelan Dep. Tr. at 72-73).
• Whelan had no personal knowledge of how the Town used the trail, if at all, before 1932.
(Whelan Dep. Tr. at 144) and he was not aware of any Town official or employee who
has personal knowledge about how the Town used the trail, if at all, before 1932.
(Whelan Dep. Tr. at 144-145).
• The Town does not have any records about maintenance performed on the trail, other
than what it presented or identified in its answers to interrogatories. (Whelan Dep. Tr. at
146-147). Aside from the potential installation of utility poles, and the materials
identifying maintenance provided in Concord’s answers to interrogatories and document
production, Whelan was not aware of any other actions that the Town took on Estabrook
trail before 1932. (Whelan Dep. Tr. at 167).
• The Town has not taken any action to maintain the unpaved trail since 1932. (Whelan
Dep. Tr. at 185). Whelan testified: “Zero, I don’t know if the number would be, amount
of hours the Town spent on it would be zero, but it would be minimal at best, and I’m not
aware of any specific actions that were taken by town officials to maintain the trail.”
(Whelan Dep. Tr. at 186). This is consistent with the Town’s interrogatory answers
(“Pursuant to the intent of the 1932 discontinuance, the Town has not performed any
paving, grading, clearing, patching, graveling, or other maintenance on the currently
unpaved portion of the Road since 1932.”) (Concord’s Third Supplemental Response to
Defendant Neil E. Rasmussen’s First Set of Interrogatories, Response No. 12, at 9;
Whelan Dep. Tr. at 186, Ex. 3).
• Although Compl. ¶ 20, alleges: “In colonial times, the Road was the most direct route
between Concord Center and Carlisle Center and had, at one time, been considered as a
site for the Carlisle Meeting House,” Whelan was not aware of the precise route that
people might have traveled from Concord to Carlisle. (Whelan Dep. Tr. at 342). Whelan
did not know who cut down the trees and created the path. (Whelan Dep. Tr. at 343).
Town Counsel has also acknowledged that “post-1932, there’s no dispute that the Town
hasn’t maintained the road post-1932.” Hearing on Defendants’ Motion for Discovery Orders at
32 (Speicher, J.) (Feb. 5, 2019). Counsel further confirmed that “to the extent that there are
21
documents prior to 1932, prior to the discontinuance, it doesn’t – those documents don't refer to
this part of the road versus that part of the road.” Id. at 34. Given the absence of any factual
evidence to support its prescription claim, which the Town has repeatedly conceded does not
exist (see, e.g., Whelan Dep. Tr. at 343-344, 350-353), Concord relies primarily on the Affidavit
of Kristen Heitert, an archaeologist, in support of its claim that Estabrook Road became public
by prescription. (See Plaintiff’s Mem. at 12-13). Such expert opinion, however, is of dubious
value in the absence of reliable, factual evidence supporting the prescription claim. See, e.g.,
Paull v. Kelly, 62 Mass. App. Ct. 673, 677 n.10 (2004) (testimony from experts in geology,
archeological geology, and geoarcheology as to the use of paths, ways, roads, stone walls,
fences, and stone markers to mark property boundaries inconclusive as to the boundary, although
many of these features were present along and in the area of the disputed boundary).
Indeed, Heitert’s affidavit comprises little more than speculative statements, such as that,
“the stone walls along Estabrook Road were built at a prescribed two rod width and mark a clear
boundary between the road’s unrestricted use by the public and the restricted, privately
controlled uses of the adjacent woodlots, meadows, and wetlands.” (See Heitert Aff. ¶ 7). From
such surmise, Heitert purports to deduce: “Based on my research, I concluded that Estabrook
Road would have been used and understood as a public way, by Concord and Carlisle residents
from the end of the 17th century into the 20th century.” (Heitert Aff. ¶ 15). When asked in her
deposition, however, whether she has, “any knowledge as to the legal requirements for how a
road becomes public in the Commonwealth of Massachusetts”, she answered: “I do not.” (See
Heitert Dep. Tr. at 19-20). Therefore, the Court should decline to credit Heitert’s deposition and
reject the Town’s prescription claim, which is without any reliable, factual evidence to support it.
3. Concord is bound by its rule 30(b)(6) deposition testimony, which

establishes that it cannot prove that Estabrook Road is a public way.
22
In addition to confirming that the Town has no factual evidence to support its prescription
claim, Mr. Whelan’s Mass. R. Civ. P. 30 (b)(6) deposition testimony also confirmed that
Concord knew, before filing this lawsuit, that Estabrook Road was never laid out, and that there
was no dedication and acceptance of Estabrook Road prior to 1846. Therefore, the Town has no
likelihood of proving that Estabrook Trail is public via this method either.
According to Whelan’s testimony, before filing this lawsuit, any official acting on behalf
of the town would have had a conversation, “with the town clerk to determine whether there had,
in fact, been a layout of Estabrook Trail.” (See Whelan Dep. Tr. at 57). Whelan said spoke with
the town clerk and asked if there were, “any records of town meeting action relative to Estabrook
Road, and the naming of the road was identified but no layout or acceptance of dedication of
land by private property owners was identified to [him].” (Whelan Dep. Tr. at 62). Whelan
testified that, “an exhaustive search was done to see if there was any such action taken by town
meeting.” (Whelan Dep. Tr. at 63). Whelan testified that he “was informed that a search was
done of records, older records as well as current records, and no layout was found.” (Whelan
Dep. Tr. at 59). Whelan’s testimony confirming that no such layout exists included the
following, unequivocal confirmations:
• An email exchange between a Town clerk and librarian in December 2016 which
confirms there was “No Estabrook Road among the street layouts.” (See Whelan Dep. Tr.
at 57-59, Ex. 8).
• Whelan consulted with the Concord Public Works department before bringing this
lawsuit. (Whelan Dep. Tr. at 56). Public Works “indicated that they were unable to locate
a layout” for Estabrook trail. (Whelan Dep. Tr. at 56). “Public Works includes the
engineering division of Public Works as well as the director’s office, and the planning
office and/or building inspector who is within the Planning Department.” (Whelan Dep.
Tr. at 59).
• Whelan testified that, “a request was made that the Light Department make a search.
And no layout was found in any of those locations.” (Whelan Dep. Tr. at 60). Whelan
23
testified that, “it was expected that [a layout] would be found in Public Works
engineering. When that didn’t happen they went to the town clerk. Then when that didn’t
happen, they went to the light plant and the Building Department.” (Whelan Dep. Tr. at
60). Whelan spoke with the town clerk and asked if there were, “any records of town
meeting action relative to Estabrook Road, and the naming of the road was identified but
no layout or acceptance of dedication of land by private property owners was identified to
[him].” (Whelan Dep. Tr. at 62). Whelan testified that, “an exhaustive search was done to
see if there was any such action taken by town meeting.” (Whelan Dep. Tr. at 63).
• Whelan also testified: “It’s my understanding we have not produced a layout”. (Whelan
Dep. Tr. at 340). Whelan testified: “It’s my understanding there is no, there’s no record in
the town clerk’s files that shows a layout specifically of a road named Estabrook Road.”
(Whelan Dep. Tr. at 340).
The town is bound by this rule 30(b)(6) deposition testimony. Consequently, the Town
has no hope of establishing that Estabrook Trail was ever laid out and accepted as a public way.
Therefore, the Court should deny the Town’s motion for this reason as well.
III. THE TOWN WILL NOT SUFFER IRREPARABLE HARM IF THE COURT
DENIES ITS MOTION.
The Town is utterly unable to establish any irreparable harm that it will suffer if the Court
denies its Motion. “In the context of a preliminary injunction the only rights which may be
irreparably lost are those not capable of vindication by a final judgment, rendered either at law or
in equity.” Packaging Indus. Group, Inc., 380 Mass. at 617 n.11.
Here, Concord has failed to show that locus has been laid out by public authority in the
manner prescribed by statute, or prescription, or a dedication and acceptance prior to 1846, so the
Town does not even have a cognizable interest in Estabrook Trail. In addition, there is no dispute
that the Town has not been using or maintaining Estabrook Trail at least since 1932, nor at any
time during the pendency of this case. Similarly, the Town has not exercised dominion and
control over the land in its corporate capacity through authorized acts of its employees, agents or
representatives. See Athanasiou, 92 Mass. App. Ct. at 96. As Whelan testified, the town has
24
taken “zero” or “minimal at best” action to maintain the unpaved trail since 1932. (See Whelan
Dep. Tr. at 185-186). Accordingly, keeping the trail closed does not harm the Town.
The Town’s primary claim of harm is hollow: “The Town has received a flood of
complaints from residents about the closure.” (See Plaintiff’s Mem. at 19). The Town does not
represent the private citizens who are lobbying the Town and it has no standing to advocate for
them, because public interests are entrusted to the attorney general. See Nabhan v. Salisbury,
Land Court Case No. 10 MISC 442909 (AHS), Decision at 14 (Sands, J.) (Apr. 17, 2014)
(“Where a private injury is common to all citizens, ‘the right is to be vindicated on the petition of
the Attorney General or some officer representing the commonwealth’ because ‘the public
interests are entrusted to the attorney general .’”) (quoting from Dube v. Mayor of Fall River, 308
Mass. 12, 15 (1941)). Indeed, “if the general public has a right to use the Easement , the Attorney
General for the Commonwealth is the proper channel through which such right can be
vindicated. See Dube v. Mayor of Fall River, 308 Mass. 12, 14 (1941); ‘[i]f the public or any
part of it, are injuriously affected by erroneous action . . . in laying out or discontinuing a way,
their remedy must be sought through the Attorney General ’); see also Attorney General v. Tarr,
148 Mass 309, 314 (1888).” Nabhan v. Salisbury, Land Court Case No. 10 MISC 442909 (AHS),
Decision at 12 (Sands, J.) (Apr. 17, 2014).
Additionally, Concord has not shown that any member of the general public has suffered
irreparable harm as a result of the closure of the trail. While the town manager’s affidavit
discusses that he received e-mails from town residents expressing dismay at the closure of the
road (see Crane Aff. ¶ 8), none of these people are parties to the case, and none of them have
sworn to any irreparable harm. 12
12The defendants object to Mr. Crane’s inclusion of “a selection of these emails”, (see Crane Aff. ¶ 8, Tab 5), which
serve no purpose other than to wage an unfair attack on the defendants’ character.
25
Finally, the Town’s claim that an injunction is necessary here to preserve the status quo is
also without merit. The best way to protect the status quo of this property is to preserve it from
any further potential impact from use by the general public. Indeed, the landowners’ decision to
close the trail on April 5, 2020 is consistent with the status quo and preserves it. Defendants
have allowed members of the public to use the trail for years and Mr. Whelan testified
extensively about the abutters’ generosity in allowing public use. (See Whelan Dep. Tr. at 381-
382). The landowners have always controlled access to Estabrook Trail, and have given
permission to members of the public to use it. See Kay Aff. ¶¶ 6, 41; Read Aff. ¶¶ 7, 10; Robb
Aff. ¶ 10. A gate maintained by the landowners has been maintained for many years. See Kay
Aff. ¶¶ 15-16; Robb Aff. ¶¶ 8, 10. While the decorative gate erected in 2017 garnered much
attention, it replaced a chain attached to two granite posts which stood in exactly the same
location for many years. See Kay Aff. ¶¶ 15-16. Accordingly, the status quo is that the
landowners have a history of controlling access to the trail and posting signage on the trail and
have the right to continue to do so. See Kay Aff. ¶¶ 19, 41; Read Aff. ¶¶ 8, 38-39; Robb Aff. ¶¶
7-10. Therefore, Concord is unable to establish any harm whatsoever from keeping the trail
closed until the trial of this case on the merits.
IV. THE BALANCE OF THE HARMS FAVORS DENYING THE INJUNCTION.
In addition to the consideration of irreparable injury and likelihood of success on the
merits, this Court must weigh the competing interest of the opposing party when deciding
whether to issue a preliminary injunction. See Commonwealth v. Massachusetts CRINC, 392
Mass. 79, 87-88 (1984). In applying this balancing test, our courts have said that what matters as
to each party is not the raw amount of harm the party might suffer, but rather the risk of such
harm in light of the party’s likelihood of success on the merits. When that balancing tips in favor
26
of the moving party the injunction should be granted. Packaging Indus. Group, Inc., 380 Mass.
at 617. Here, defendants would suffer greater harm if the Court grants an injunction compared
against any potential harm that plaintiff might suffer if the Court denies an injunction.
As detailed in their affidavits, the Read-Kays and the Robbs have suffered immeasurably
from the abuse of their property rights by the general public. See Kay Aff. ¶¶ 7-9, 18-27; Read
Aff. ¶¶ 12-28; Robb Aff. ¶¶ 22-27. The Town has compounded this harm by refusing to enforce
its own laws and ordinances concerning trespassing, the leashing of dogs, and vandalism. See
Kay Aff. ¶ 52; Read Aff. ¶ 25; Robb Aff., ¶¶ 21-23. Indeed, it was the increased usage on the
trail during the COVID-19 pandemic which promoted Defendants to close the trail. See Kay Aff.
¶ 8; Read Aff. ¶ 35.
The defendants have the right to exclude the public from their land. “The right that is
most central to the ‘bundle’ of rights enjoyed by a private property owner is not the freedom
from an obligation to invite visitors, it is the affirmative right to exclude others from one’s
property. United States v. Craft, 535 U.S. 274, 278 (2002). See Kaiser Aetna v. United States,
444 U.S. 164, 179-180 (1979) (describing right to exclude as ‘universally held to be a
fundamental element of the property right’).” New England Forestry Foundation, Inc. v. Board
of Assessors of Hawley, 468 Mass. 138, 157 (2014). Affirmative steps to exclude the public
from private land include, “physical barriers, ‘no trespassing’ signs, or actively patrolling the
land.” Id. "If a possessory interest in real property has any meaning at all it must include the
general right to exclude others.” Opinion of the Justices, 365 Mass. 681, 689 (1974). “A party
with the legal right to exclude others from a way may be able to create a physical barrier to block
access to the way . . . .” Velji v. Bishop, Land Court Case No. 15 MISC 000308 (GHP)
Judgment at 2 (Piper, J.) (Dec. 7, 2016).
27
Therefore, an injunction forcing defendants to open their land to the general public would
work a double injustice as it would subject them to the very harms they were trying to guard
against by closing the trail while depriving them of any means from protecting themselves.
Additionally, defendants’ affidavits demonstrate that Concord does not come to this
Court with clean hands. “The doctrine of unclean hands denies equitable relief ‘to one tainted
with the inequitableness or bad faith relative to the matter in which [he] seeks relief.’ Fidelity
Mgmt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200 (1996), quoting from United
States v. Perez-Torres, 15 F.3d 403, 407 (5th Cir. 1994).” Concord’s extensively documented
course of conduct in which it has falsely claimed ownership of Estabrook Trail, repeatedly
defamed defendants for enforcing their rights, and refused to grant them the equal protection of
the Town’s laws in apparent retaliation for their assertion of their rights confirm that the Town’s
unclean hands in this matter preclude it from receiving the benefit of equitable relief. Therefore,
the Court should deny the Town’s motion.
V. INJUNCTIVE RELIEF IS CONTRARY TO THE PUBLIC INTEREST.
“[B]efore issuing the preliminary injunction, a judge is required to determine that the
requested order promotes the public interest, or, alternatively, that the equitable relief will not
adversely affect the public.” Massachusetts CRINC, 392 Mass. at 89. The public interest would
be adversely affected by the issuance of an injunction that prevents a landowner from exercising
dominion and control over his private property.
The public interest does not favor injunctive relief in favor of the Town to keep the trail
open. Increased use of the trail is inconsistent with Governor Baker’s COVID-19 orders. The
public interest and public health favor a closure of the trail. The public interest also favors
enforcing a landowner’s right to control his land and to exclude the public.
28
CONCLUSION
For the foregoing reasons, the defendants respectfully request that the Court deny the
plaintiff Town of Concord’s motion for preliminary injunction.

By their attorneys,
/s/ Robert Nislick
____________________________________
P.O. Box 5207
(508) 405-1238
rob@nislick.com
__________________________________
Todd & Weld LLP
One Federal Street
Boston, MA 02110
(617) 720-2626
on counsel for all other parties, by electronic mail to:

Kevin D. Batt, Esq.
29
Boston, MA 02109
(617) 621-6500

Boston, MA 02109
(617) 227-7940
/s/ Robert Nislick

____________________________________
Robert Nislick
30
LAND COURT

__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
v. )
)
NEIL E. RASMUSSEN, ANNA W. )
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
AFFIDAVIT OF SUSANNAH KAY, M.D.
I, Susannah Kay, M.D., under oath, hereby depose and state as follows:
1. Together with my husband, Brooks Read, I am one of the named Defendants in
this case. I submit this affidavit in opposition to the Town of Concord’s Motion for a Preliminary
Injunction. The facts set forth here are based upon my own personal knowledge.
2. I am grateful that this long-running dispute is finally before the Court given what
has taken place over the past two-and-half years plus since the Town decided to sue us without
any notice to us, to vilify us publicly through a false narrative set forth in a press release it issued
suggesting that we were some type of vigilantes who had no ownership rights in the property,
and to otherwise direct the anger of our community at us. It is almost impossible for me to
communicate the anguish which my husband and I have suffered while being cast in this role and
while this dispute has been festering including while we have been in quarantine due to the
pandemic. To the extent it is possible to do so in writing, I will describe below the factual events
as I have experienced them, the human toll which has been visited upon my family because of
the Town’s actions and inactions in this case, and the harm we will continue to suffer if the Court
forces us to reopen the gate as the Town requests in its motion.
3. I am prepared at the Court’s request to testify live so Your Honor can hear from
me and see me in person. Indeed, my husband and I have proposed to the Town that we resolve
this injunction motion and our overall dispute by having a trial take place as soon as possible (in
the next 60 to 90 days) so that this matter is finally over, the parties’ rights are fixed, and the
ongoing danger to my family and our property can cease. The Town has rejected our overture.
4. I am a physician. I am dealing every day with COVID-19 patients. I willingly
subject myself to the potential risk from my work. However, due to the Town’s actions and
inactions described below, I feel more danger in my own home where as the COVID-19
pandemic began and we were quarantined inside our house, people began to congregate on our
property taking no precautions whatsoever and during which we have been subjected regularly to
unlawful activity from trespassers and harassment which the Town has failed to control.
5. This case concerns whether Estabrook Trail in Concord is a public way or
privately owned by the abutting landowners, which include my husband and me. Estabrook Trail
is an unpaved dirt trail which runs northerly from a certain point in Concord, approximately two
miles, towards the Carlisle town line. The southern trailhead is adjacent to 366 Estabrook Road
(which is registered land owned by my husband and me) on the easterly side of the trail, and by
registered land owned by Defendants Neil and Anna Rasmussen, on the westerly side of the trail.
2
6. Although we own Estabrook Trail, for many years we explicitly and voluntarily
welcomed and allowed members of the public to use our land to access the Estabrook Woods. In
doing so, we met many interesting people over the years who have entered our land for the sake
of studying nature.
7. Unfortunately, in the last decade, things changed considerably – not only do many
more people enter onto our land, but they do so with the attitude of people who are entitled to be
there and with no sense of respect for us or our property. As a result, our private property
interests – in both the Estabrook Trail and in our adjacent yard and home – have been repeatedly
interfered with by trespasses, vandalism, crime, drug activity, threats of arson, public urination,
off-leash dog walking, and the refusal of persons using the trail to follow rules. We also suffer a
grave fire risk. All of these circumstances are detailed below.
8. All of this came to a head and grew exponentially worse when the COVID-19
pandemic struck. Despite Governor Baker’s repeated pleas that people stay home and social
distance, activity at the southern trailhead near our house increased dramatically throughout
March of 2020 and into April. People gathered on our property without masks, without social
distancing, and without regard to how far towards our home they would wander. Given my
experience as a physician dealing personally with the epidemic, given the ongoing harm being
caused by the public to our property and property rights, and due to my increased concern about
our own COVID-19 exposure, my husband and I decided to closed access to our trail to the
public on April 5, 2020.
9. As the Court is no doubt aware, the pandemic continues and in many parts of the
country it is out of control. An order by this Court to reopen public access to our private property
would subject my husband and me, and our co-defendants, to immediate and irreparable ongoing
3
harm because we would be unable to control the use of our own property and the Town, as
detailed below, has made it clear that it will do nothing to ensure either our safety or the proper
use by the public of our land. We have no way of knowing who is coming onto our property,
whether they are local neighbors or visitors from areas of the country where the virus has been
out of control. I note in this regard that the area has been widely advertised on the Internet as a
destination to visit during the pandemic.
10. I received my medical degree from Boston University School of Medicine in 1995
and I am a practicing physician.
11. Currently, I am Chief of Thoracic Radiology at Tufts Medical Center. On a daily
basis, I read ultrasounds, chest x-rays, and CT scans for inpatients, ICU patients, and outpatients,
as well as for the emergency department.
12. I am on the hospital’s COVID-19 task force, which directs the standard of care,
and oversees the standard of care for COVID-19 patients. In February 2020, I was chosen by
Tufts to extensively research the virus and to give one of the first hospital-wide talks on what
was, at that time, an extraordinarily novel pathogen. That research, and subsequent research to
stay current as understanding of the virus and its effects have accumulated, made me acutely
aware of the risks that it poses even for those who nominally “survive” an infection. Due to my
training, experience, and particular expertise, I am highly knowledgeable about this virus and the
risks that it poses.
13. One indicator of the severity of disease from infection by COVID infection is the
viral load the person is exposed to, which is why so many healthcare workers are becoming
sicker on average than the average citizen who is not continually being exposed to the virus. We
are exposed to more virus by the nature of our work than the average citizen. I willingly accept
4
this risk as part of my job and have the ability to take the necessary precautions of mask, eye
protective gear, and if coming in close contact with patients, also a gown and gloves. I do not
have that ability to protect myself from increased risk of exposure at home.
14. Therefore, the number of people who began using and congregating on our
property caused my family and me to have serious concerns for our health due to the ongoing
pandemic. If the Court forces us to reopen the use of our private property to the public, I have no
doubt that unsafe numbers of people will return as they did before, exposing me and my family
to an increased exposure to COVID-19 even while we are on our own property.
15. A precipitating event to the Town’s decision to file this case is that, in 2017, with
my husband’s and my assent, the Rasmussens replaced a chain that had been across the trail
(since we moved in more than 23 years ago) with a wooden gate which was far more visible than
the chain and, therefore, less of a hazard across Estabrook Trail at the approximate point where
the Town’s discontinuance of the Road begins. Since Estabrook Trail begins at about the same
point as the Town’s discontinuance of Estabrook Road, Estabrook Trail is sometimes referred to
as the discontinued portion of Estabrook Road. Given our knowledge about our ownership of this
trail, we had every right to agree to have a wooden gate installed at the beginning of Estabrook
Trail.
16. A few weeks after we (along with the Rasmussens) replaced the chain with this
gate, the Town filed suit and, in doing so, issued a press release dated October 26, 2017. In that
press release, and in numerous public statements thereafter, the Town and various current and
past Town officials and special interest groups (such as a dog-owners group called “Concord
Unleashed”) have published false accusations concerning my husband and me, including: (i) that
we “refused to negotiate with the Town to resolve this dispute” prior to litigation (a false
5
statement that appears in the town’s complaint); (ii) that we threatened a lawsuit against the
Town; (iii) that “the Town was forced to file suit” against us; (iv) that we have been unwilling to
mediate the dispute and that we “walked away” from mediation; (v) that we have made no
serious settlement proposals to resolve this dispute; (vi) that the Town was “able to settle” with
other reasonable parties with the innuendo being that we have been unreasonable concerning
settlement; (vii) that the public has a legal right to access the beginning of Estabrook Trail as a
public way where it crosses our property and that there is actual historical evidence that the
property has long been a public way; and, (viii) that we erected signage and a large gate to deter
public access to Estabrook Woods.
17. These statements have been issued repeatedly by the Town and Town officials,
even though they know they are not true. Repeatedly making these public, false statements
appears aimed at demonizing us in the public’s eyes and at encouraging members of the public to
be abusive to us and to our private property.
18. As background, my husband and I along with the Rasmussens have expressed our
concern to town officials about the misuse of our land by members of the public for years. For
example, in a letter dated November 13, 2013, I notified the Concord Police Department about
recurring unsafe conditions on Estabrook Road due to increased parking, litter, and inappropriate
behavior on the part of the public with respect to trespassing into fields and into private barns,
along paths, loose dogs chasing livestock on our private property, and general harassment of
residents of the street.
19. This kind of behavior was commonplace at the time and in the ensuing years.
Nevertheless, we continued to allow public access to our land in the good faith belief that the
Town would help protect our land from overuse and abuse. Unfortunately, this did not occur.
6
20. After several years of enduring misconduct from members of the public and
inaction by the Town, on May 1, 2017, my husband and I wrote to the Concord Select Board,
and detailed some of the aggressive and confrontational behavior exhibited by trail users:
“people trespassing (see police logs and Notice of Trespass on file with the police), defacing our
property (see police logs), threats to our animals (ref. police logs), ‘malicious mischief’ (people
let the air out of both of the back tires on our minivan used to transport or children), foul
language, insults, rude comments, death of a family pet, and aggressive behavior (see police logs
re an individual intentionally blocking the entrance to our home and taking photos of my family
in an attempt to intimidate us until my husband came home).” A copy of this letter is attached
hereto as Exhibit A.
21. As the letter explains, “[i]n public forums we have had to endure threats from
Concord citizens suggesting our land be overrun and taken from us by sheer force, that our
private property be taken by eminent domain, that we be fenced in to our homes, or that we have
‘quiet hours’ and conversely non-quiet hours imposed on our private property.”
22. As a consequence, we explained that “we no longer feel safe and comfortable in
our homes or on our private land, and I am not speaking only of the path, but in our yards,
pastures, on our decks and porches, and in our hammocks.”
23. In this same timeframe of mid-2017, just prior to the Town’s filing of this lawsuit,
we and our neighbors, the Rasmussens, encountered an increased number of trespassers beyond
the limits of where we had previously allowed the public to walk. Specifically, people started
coming into my family’s horse fields, had picnics, and allowed dogs to run loose on our land.
7
24. On one occasion many years ago, my family had hired ‘Animal Adventures’ to
make a presentation at our child’s birthday party. Incredibly, people on the street crawled over a
stone wall, across a pasture, over two sets of split-rail fence, and joined the party.
25. On another occasion more recently, in 2016, a family climbed over our triple-rail
fences and a stone wall and trespassed on our land, entered our horse sheds, and fed our horses.
This caused one of our horses to experience multiple choking attacks.
26. My husband and I also observed the theft of firewood on our land. On one
occasion, we saw a man back his car up to the unpaved portion at the end of the paved portion of
the Estabrook Trail and started loading our firewood into his car and drove off with it. We
communicated with the police over the matter and asked that he be told not to return.
27. In addition, there are no water or sewer pipes along the section of Estabrook Road
that runs from Barnes Hill Road to the point of discontinuance. Similarly, there are no water or
sewer pipes along Estabrook Trail. The town of Concord does not supply water or sewer service
to our property. Instead, we have a 318-foot deep well to supply water and we have a backup
generator so that water can continue to be pumped to the house in the event of a power failure.
We, like everyone else on this dead-end portion of Estabrook Road, have a septic system.
28. There are also no hydrants on Estabrook Trail. The nearest fire hydrant is located
.4 mile from our house, barn, and livestock.
29. My husband and I have expressed our concerns for fire safety repeatedly to the
town, which is exacerbated when cars are parked on our portion of the Estabrook Trail. For
example, cars have sometimes been parked so that there is barely room for a small sedan to pass,
and certainly no chance for any emergency vehicle to gain access to our home. Given that we
8
heat primarily by wood, and we are on our private well, and there are no fire hydrants, we rely on
the access by emergency vehicles for our safety.
30. As indicated above, the Rasmussens replaced the chain across the Estabrook Trail
with a fence, primarily to improve visibility of the barrier; the chain was difficult to see in darker
light.
31. When members of the public complained about our efforts to protect our property,
the Town, despite knowing that we owned that land, did nothing to defend our property rights.
Instead, the Town actively encouraged members of the Town to view us as the bad actors. In one
especially horrible instance, in June 2018, the Chair of the Select Board read a prepared
statement during a regular Select Board meeting accusing us of placing poison on our property to
“cause anxiety among those who walk their dogs in the vicinity of [our] property,” and that we
“were trying to send a message.”
32. Although the Chair did not mention us by name it was obvious he was intending
to refer to us and his friend, Jeff Young, posted a three-minute video on both “Concord
Unleashed” web sites, and unambiguously identified us as the perpetrators with the well-
understood term, “Estabrook abutters,” and other clear references to us. Many defamatory
comments followed. The false narrative of Town ownership of our private property and our
being “evil” took on a life of its own withing the Town, all as encouraged by Town officials.
33. Neither my husband nor I would ever do something so destructive and, especially
given that I am a physician, spreading the false rumor that I would do something so harmful to
public health was and is very damaging to me and my reputation.
34. The Town had no evidence to support this rumor and did nothing to correct or
retract it. When my husband submitted a public records request to determine the basis for the
9
Select Board’s statement that we had placed poison in the woods to send a message, the response
to the request came back with no documents supporting this accusation.
35. More recently, as stated above, due to the COVID-19 pandemic, use of Estabrook
Trail by private citizens sharply increased throughout March 2020, including with more people
walking or biking onto the Trail. Consequently, all our preexisting concerns intensified
dramatically. Despite the increase of usage, trail users failed to observe social distancing and also
let their dogs run off leash. On April 1, 2020, one trail user’s unleashed dog left a nearby trail
across the Rasmussens’ backland, entered onto the non-trail portion of Neil Rasmussen’s land,
bit him, and drew blood.
36. Unfortunately, trail users littered the trail that we own, including with lit cigarette
butts on the trail, which caused small fires and posed an obvious fire hazard. As explained above,
there are no fire hydrants on our road and, after a discussion between the Town Fire Chief and
our neighbor, Mr. Rasmussen in March, we have confirmed that our home is in the same high-
risk situation as a large Concord home that burned on Fairhaven Road.
37. Due to heightened concerns over this activity during a pandemic, on April 5,
2020, at 7:30 P.M., the Rasmussens and we closed our trail using a rope to tie the gate shut.
38. I am aware that, in connection with our decision to close the trail, Mr. Rasmussen
made and erected three signs which say: “CLOSED For Safety Reasons Until Further Notice.”
Mr. Rasmussen also replaced the welcome sign with a sign warning the public against entry. The
language of this sign purposefully and explicitly follows the Trail’s 1932 discontinuance of the
maintenance of this portion of Estabrook Road under G.L. c. 82, § 32A (1924) and cites the
exact verbiage provided in the final order as well as the discontinuance docket number and name
of the ordering body.
10
39. Cones were also placed in the parking area which is situated on Mr. Rasmussen’s
land approximately 200 feet to the south of the gate along the edge of the road.
40. Apart from this most recent instance, we have closed access to Estabrook Trail in
the past for safety reasons. Specifically, in April 2017, a coyote protecting her pups in her natural
habitat, attacked at least four off-leash dogs, prompting the Police Chief to issue an alert to warn
people away from using the entrance. Five different TV crews showed up to cover this story. My
husband and I were rushed by cameramen and microphones as we walked down to see what was
going on. In order to allow the coyote to wean her pups, and out of concern for the safety of the
trail users, their children, and their dogs, we closed the trail.
41. In the past, we actively managed our private property jointly with the Rasmussens
without Town complaint when we have closed access for safety reasons – for example, when tree
work was being performed, and when the trail was being graded and re-graded. In addition, we
have co-managed the trail with the Rasmussens for certain events our neighbors have hosted.
42. I am also aware that the Town wrote about the possibility of closing trails during
this pandemic and expressed its concern about social distancing at trails. The Town also publicly
posted that they would have police monitoring at conservation areas. There were comments
made by both Select Board members as well as Town Manager that indicated there were serious
concerns regarding lack of social distancing. Incredibly, as my husband, Brooks Read also
explains in his affidavit, those comments have been deleted from the currently posted public
material managed by the Town. Ultimately, the Town only closed sport courts and playground
equipment, and never closed trails.
43. Although the Town does not mention this in its motion papers, the day after we
closed the trail, on April 6, 2020, my husband and I wrote to Concord Police Department Chief
11
Joseph F. O’Connor to reiterate the dangerous activity that we had observed and to explain that
we had closed the trail indefinitely. A copy of this letter is attached hereto as Exhibit B.
44. Two days later, on April 8, 2020, we saw and identified two specific persons,
among others, who breached the gate at the trail entrance and intentionally entered onto
Estabrook Trail.
45. The next day, on April 9, 2020, after we learned from Mr. Rasmussen that Town
Manager Stephen Crane was refusing to speak with us directly, we wrote to Mr. Crane to clarify
our decision to revoke permission of public access over our private property. We also asked
Town Manager Crane that, if he disputed our property rights, to provide us with any document
that legally demonstrates any ownership in or rights to our land by the Town. No one from the
Town has ever provided us such a document. In that letter, we reiterated our many concerns
about the overuse and abuse of our property. I was disturbed to see in the Town’s papers that the
Town characterized this letter – which was our attempt to express our concerns – as “unhinged.”
A copy of that letter is attached hereto as Exhibit C.
46. Since we closed the gate to our trail, the Town has actively undermined our
efforts to protect ourselves from other citizens who intentionally damage our property. For
example, on April 16, 2020, my husband and I wrote to the Concord Select Board and Town
Manager concerning certain malicious acts of vandalism at the southern trailhead committed by
an unknown man on a bicycle with a young child.
47. This letter, which is attached hereto as Exhibit D, includes multiple photographs
which clearly show this man destroying personal property on our land. This individual’s conduct
is outrageous. The town has refused to address our concern or the letters we wrote in to the
Select Board. The Police characterized this event as “suspicious activity” when in fact it was
12
destruction and vandalism of our property. Unfortunately, this conduct is just one example of the
harm we are suffering which the Town is failing to protect us against.
48. On the contrary, only one week after we wrote this letter, on April 23, 2020, the
Concord Select Board published a statement, attached hereto as Exhibit E, which falsely
attempted to place all of the blame for this legal dispute on my husband and me and our
neighbors. The letter also told members of the Town that the Town would not enforce rules
against trespassing on our land.
49. This Town statement subjected us to serious harm because it proclaimed that our
actions in serving no-trespass notices and in closing the trail have “no legal effect.” Even worse,
the Select Board has stated that, “the Town will not take action to prevent the public from using
the unpaved portion of Estabrook Road.”
50. Since the Town’s statement, I have encountered people trespassing on our land
who expressly stated that they did so after reviewing the Town’s statement indicating that the
Town would not enforce our “no trespass” notices. In one case, I encountered someone who
drove from Lexington with their children and 2 dogs to purposefully trespass and, when served
with a Notice of No Trespass, informed the constable that he read that the town would not
enforce the law on our property.
51. In the past few years, but especially recently, members of the citizen group
mentioned above, “Concord Unleashed,” which advocates against dog-leashing rules, have
refused to adhere to posted rules of use on our private property. Indeed, they post online about
their violations of these rules and have shared this information with the Select Board, including
on April 16, 2020. The Select Board has done nothing, nor has the Town Manager, nor Town
Counsel, nor Police.
13
52 . incredibly , l learned that the Town explicitly told its animal control officer not to
enforce the law on our portion of Estabrook Trail or on the paved portion of Estabrook Road. We
had not been aware of this until the deposition of the Animal Control Officer was taken. The
Town ' s refusal to enforce these laws as they respect our property appears to be retaliation against
myself and the other Defendants merely for standing up for the property rights we have always
understood , and continue to understand , we possess.
53. If this Court enters an order forcing us to allow the public to continue using our
private property , the Court will subject us to irreparable harm in many forms , including by
depriving us from the ability to control access to our own property. In addition, as explained
above , when the public had access to our trail , members of the public abused and trespassed into
our own yard , which is indisputably ours. Nevertheless , the Town did nothing to protect us from
this behavior and , instead , encouraged it and egged it on.
54. The best way to preserve the status quo with respect to the Estabrook Trail is for
this Court to order that the trail remain closed off to the public until it issues a final ruling on the
merits of th is case after trial.
55. Either way , after suffering for so many years due to the Town ' s refusal to accept
and respect our property rights , I implore this Court to resolve this matter as soon as possible
given that I understand that discovery in the case is over and the legal issues are well-defined.
Signed and sworn to under the pains and penalties of perjury this J I, "'-day of July,
2020.
14

By their attorneys,
/s/ Robert Nislick

____________________________________
P.O. Box 5207
(508) 405-1238
rob@nislick.com
SUSANNAH KAY, BROOKS S. READ

LESLEE ROBB and RUSSELL ROBB III,
By their attorneys,
____________________________________
Todd & Weld LLP
One Federal Street Boston, MA 02110
(617) 720-2626
15

Kevin D. Batt, Esq.
Boston, MA 02109
(617) 621-6500

Boston, MA 02109
(617) 227-7940
/s/ Robert Nislick

____________________________________
Robert Nislick
16
A
B
---------- Forwarded message ----------
From: Susannah Kay MD <susannahkay1@gmail.com>
Date: Mon, 6 Apr 2020 08:18:43 -0400
Subject: Estarook Trail is Closed until further notice
To: Joconnor@concordma.gov, jabbal@verizon.net
Cc: neil@savourheritage.com, Anna West Winter
<anna@saveourheritage.com>, Brooks Read <brooksola@yahoo.com>,
susannahkay1@gmail.com
Chief O'Connor and to the entire Concord Police department,
We thank you for your patience and tolerance with our multiple calls
which have recently sharply increased in both frequency as well as in
agitation. There has been an increase in conflict with aggressive,
bizarre, and openly hostile citizenry, of all ages, as has been
documented to you by my neighbors.
With the COVID pandemic, people have been instructed to practice

social distancing, and to remain, if possible, in their homes.
Unfortunately that translated into an explosive use of our private
property at the end of Estabrook Road. There has been an exponential
increase in walkers, runners, bikers, hikers, illegal parking,
picnicking, after hours use, etc. The number of unleashed and out of
control dogs and other animals has had a corresponding increase. Our
neighbor was attacked by an off leash dog and the dog drew blood with
it's bite. This has already been submitted to you with photos of the
bloody wound, etc.
There are no fire hydrants on our road, and after a discussion between
the Fire Chief and Neil Rasmussen approximately one month ago, we have
now documented that our homes are in the same high-risk situation as
the home that burnt to the ground on Fairhaven Road- and as we have
found numerous discarded lit cigarette butts on our properties, the
public is bringing significantly increased risk of fire to our
properties.
There is no "social distancing " (we have the video and have watched
it) being practiced here- the trail is incredibly crowded, animals are
out of control and we are now taking definitive actions to protect our
homes, our families health, our animals, and our lives.
In conjunction with our neighbors, we have shut our trail indefinitely.
If you have any further questions, we would be happy to discuss them.
I have cc'd the animal control officer, as well as our neighbors who
share ownership of the trail with us.
Susannah Kay, MD
Brooks S. Read
366 Estabrook Road
C
April 9, 2020
Town Manager Crane,
Our neighbor, co-defendant, and co-path owner, Neil Rasmussen relayed to us that you did not
wish to speak with us when Neil suggested you call us yesterday. Neil also told us that you
hoped that Neil would act as an intermediary between you and us regarding our decision to
close our side of the path on our private property. Neil is not our legal representative. He does
not hold power of attorney for us.
We wish to clarify our decision to revoke permission of public access over our unencumbered
private property. If you have any document that legally demonstrates an encumbrance, please
produce it, otherwise this is purely a letter out of courtesy to clarify our decision.
You are likely aware of the fire on Fairhaven Hill Road that completely burnt to the ground an
old historic home. Like that neighborhood, we have no town water and no fire hydrants on our
street. Neil Rasmussen confirmed with the Fire Chief that our property faces the same
firefighting risks as the home on Fairhaven Hill Road. We have documented to the town on
many occasions over the years that we have found lit cigarettes on the ground, and that this is a
fire hazard. With the increased number of people over our private property since the rise of
COVID-19, we have continued to find small smoldering fire remnants from discarded lit
cigarettes. The fire risk here is significant and the town has done nothing to reduce it.
You are likely aware from your discussion with the Rasmussens that Neil was attacked and
rather severely bitten by an off-leash dog on his private property earlier this month.
You are likely aware that due to COVID-19, aberrantly large numbers of people have been
accessing our private property while we continued to still welcome them - indeed, there was a
very sharp increase in calls for police assistance regarding parking violations as well as animal
control issues.
Almost no one was practicing “social distancing” by our homes. Almost no one was wearing
masks.
Our safety, our property, and our health have become severely threatened by the reckless and
negligent activities of certain trail users, and therefore justifies a change from our long-standing
willingness to keep our property open. As you know, and as your predecessor Mr. Whelan
acknowledged in his deposition, we have generously welcomed people onto our trail,
notwithstanding the town’s ill-considered ploy of attempting to bully us into granting an
easement to the Town where none exists, despite the slander, libel and blatantly false and
defamatory statements made about us and our property by town officials, those related to town
officials either by marriage or by business relationship, as well as by illegal executive session
planning. So far, the Attorney General has found in our favor on 3 of the first 3 OML complaints
we filed against the town.
Approximately 5 years ago, when we asked the town for assistance to manage the public for the
safety of all involved, the town chose to make false and defamatory statements about us and
sue us instead of working cooperatively to assist us to manage the situation.
We understand that when you called the Rasmussens, they suggested a cooperative solution,
whereas you wanted them to document a fictitious plea for assistance to manage the
dramatically increased public usage and abuse of the previously available private path which
was resulting in significantly increased risk to our families, our homes, and our properties. We
understand that once again the town, specifically you, have chosen not to support the
Rasmussens in their suggestion of a cooperative solution, and instead have increased their
vulnerability as well as our vulnerability to all sorts of harm, by declining to support their
cooperative solution to the management of the parking area that the Rasmussens created and
maintained.
The false and defamatory information that the town has refused to address, and indeed, that
some town officials seem to continue to promote on social media and to the Concord Journal,
fuel the public’s discontent. It is unfortunate that the town is either unwilling or unable to
distance itself from a cabal of insiders to evaluate the facts.
The town has repeatedly subjected us to harm, when we have asked for assistance. You allege
a right of way which you cannot prove with any documentation. The situation is now literally,
deadly serious with COVID-19, fire, and being attacked by animals. All of this has been
copiously documented. For all these reasons, we will continue to actively assert our private
property rights, and defend ourselves, our health, our home, and our land.
The town does not, has never, and will not control our private property until the courts say
otherwise. Allege what you will, but you have proven nothing.
We consider any encroachment by the town onto our private property to be a violation of our
civil rights, and we will treat it as such. We informed the police of that as well. We will also hold
any trespassers on our property legally accountable.
Susannah Kay, MD
Brooks S. Read
366 Estabrook Road
D
April 16, 2020
Dear Concord Select Board and Town Manager,
Last Sunday, April 12, a man we neither know nor recognize came to our
property on a bicycle with a young child:
He attempted to pull our sign post on our property out of the ground:
He was unable to pull the post out with the young child balanced on the
bicycle, so he parked the bicycle and child:
He then threw our tripod sign over:

Then he returned to the sign post and got to work in earnest:
Eventually he was able to remove the sign post and throw it down:
He then departed:
A short time later he was apprehended by the police:
This is the sign on the post which he pulled up and threw to the ground:
This posting is required by the statute (Section 32A) under which Estabrook
Trail was discontinued. See the underlined text in Section 32A below:
The sign includes “Docket #1752.” This is the docket number for the
discontinuance of Estabrook Trail, as can be seen in this copy of the
Estabrook Trail discontinuance documents:
We would greatly appreciate your support in admonishing the public not to

destroy signage on our property which has been installed to comply with
statutory posting requirements.
Brooks Read
Susannah Kay, MD
366 Estabrook Road
E
Statement of the Select Board
April 23, 2020
The Select Board is aware that certain landowners abutting the unpaved portion of
Estabrook Road have taken actions to close that part of the road to the public. These
actions have included blocking parking near the unpaved portion of Estabrook Road,
closing gates to bar public access, and placing barricades at the entrance of the unpaved
portion of the road. In addition, certain landowners have posted no trespassing signs at two
locations along the unpaved part of the road threatening legal action against people using
the road.
In light of the considerable correspondence we have received, the Board would like
to make clear that neither the Board nor the Town Manager have approved any of these
actions and the landowners did not consult with the Town Manager or the Board before
these actions were taken. The Town, through the Town Manager and Town Counsel,
requested that the landowners remove the impediments to the road and the signage. The
landowners declined to do so.
The Board finds the landowners’ actions troubling and their unwillingness to
cooperate with the Town disheartening. The Town and the landowners have been engaged
in litigation over the past several years regarding precisely this issue: the landowners’ ability
to unilaterally close access to the unpaved portion of Estabrook Road to the public (there is
no dispute regarding the ownership of the road itself, only access to it). The Court has not
decided the issue. The landowners never sought a preliminary injunction from the court
asking the court to close access to the unpaved road pending resolution of this issue. Yet, in
the midst of a public health emergency that is occupying the majority of the Town
Manager’s, the Board’s and other Town officials’ time and resources, the landowners’ have
taken unilateral steps to prevent the public from using the road that the Town is asking the
Court to preserve as a community asset.
In normal times, the Board would have felt compelled to ask the Court to restrain the
landowners’ actions. But, these are not normal times and, like other institutions, the courts
are limiting their activity significantly, making it unclear whether the Town could be timely
heard. Further, this action would be costly and as we have made clear before, we continue
to seek ways to handle this litigation as efficiently and cost-effectively as possible. The
landowners’ recent actions have diverted significant Board and Town Manager attention
from other critical matters, and we have determined that given the Court’s and the Town’s
limited time and resources, we will not ask the Court to restrain the landowners’ actions at
this time.
We are very much dismayed by the landowners’ attempts to deprive community

members access to Estabrook Road and some measure of normalcy during these difficult
times, and by the lack of communication with the Town before they took these actions. We
also believe their actions, which are not sanctioned by any court, have no legal effect and
are counterproductive to their stated goal of resolving this case efficiently. At this moment,
we believe the time and resources that would be spent on restraining the landowners’
actions are best used to assist the Town in focusing on the safety and health of our
community. However, the Town will not take action to prevent the public from using the
unpaved portion of Estabrook Road for permitted recreational purposes, as long as those
doing so are observing proper physical distancing measures and remaining mindful of
property owners’ legitimate right to exclude the public from land abutting the road.
The Town encourages members of the public and landowners to treat one another
with respect and understanding at this difficult time.
Stay safe and be well.

LAND COURT

__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
v. )
)
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
AFFIDAVIT OF BROOKS S. READ
I, Brooks S. Read, under oath, hereby depose and state as follows:
1. Along with my wife, Dr. Susannah Kay, I am one of the named Defendants in this
case. I am making this affidavit based upon my own personal knowledge in opposition to the
Town of Concord’s Motion for Preliminary Injunction.
2. Specifically, I have first-hand knowledge of all the facts and circumstances set
forth in this affidavit. I have read the papers which the Town submitted in support of their
Motion and these papers contain numerous falsehoods.
3. I have also read my wife’s affidavit, filed simultaneously with mine, and I agree
with and adopt all of the sworn statements contained therein.

4. My wife and I own the property located at 366 Estabrook Road, which includes
not only our single-family home, but also 21 acres of land on which is situated the Estabrook
Trail. We and our neighbors, the Defendant Rasmussens, own this trail to the centerline where
our properties abut. Historically we have managed the full width of the trail cooperatively with
the Rasmussens.
5. There are no hydrants on Estabrook Road. The nearest fire hydrant is located at
the intersection of Barnes Hill Road and Estabrook Road and is located .4 mile from our house,
barn, and livestock.
6. I have known this property, including the Estabrook Trail, for nearly 40 years. My
wife and I have lived there since purchasing the property in November 1996. Prior to this time,
my mother owned the property from 1983-1996 and I lived there from 1983 to 1985. During this
entire time, we understood that the Estabrook Trail belonged to us and the property that is now
owned by the Defendant Rasmussens. At all times, the entry to the Trail has had an abutter-
installed closure to prevent vehicles from entering.
7. Despite our owning the Estabrook Trail, we were also willing to let members of
the public walk on the trail in order to access the Estabrook Woods. In the early 1980’s, there
was not significant use of the trail and there were rarely even two cars parked on the road leading
to the trail.
8. In the summer of 1987, Mr. John Hill, who was the owner of what is now the
Rasmussen property, completely excluded use of the trail by everyone, including my mother. As
a result, my mother had her counsel investigate the trail, and he obtained the document
confirming the Town’s discontinuance of the Estabrook Trail in 1932 under G.L. c. 82, § 32A.
Incredibly, when this dispute began, the Town did not even have a copy of this document, which
2
I had to provide to them. When Mr. Hill was appraised of the discontinuance facts, he relented
and allowed my mother to pass over the trail.
9. I have read in the Town’s emergency filing that it claims to have filed its
Complaint in this action on October 24, 2017, following nearly two years of unsuccessful efforts
to reach an agreement as to public access rights on the disputed portion of Estabrook Road. This
is false. The town never spoke to nine of the 10 named defendants in the lawsuit about the Trail
before filing. In fact, the Town never communicated directly with my wife or me before filing
this lawsuit, but instead communicated solely through Mr. Rasmussen, expecting him to act as
intermediary.
10. For years, my wife and I (and my mother before us) allowed members of the
public to enter into the Estabrook Woods through our private property on Estabrook Trail.
11. During this time, only small numbers of people used the trail and we often met
very interesting people coming to use the trail.
12. Beginning around 2010, however, internet promotion brought increasingly
overwhelming crowds into the neighborhood. This internet promotion – both from the Town,
various groups, and individuals – made no effort to explain that the Estabrook Trail and the
majority of the adjoining Estabrook Woods were privately owned. The absence of this
information resulted in the widespread false perception that these lands were all public.
13. As a result, when we and our neighbors sought to set limits on parking to keep the
crowds tolerable and ensure unimpaired emergency vehicle access to our homes, people in the
Town reacted negatively. Many visitors thought the entirety of the woods were public land, and
a widespread but false view developed that we were taking a public resource away from the
public.
3
14. Local newspaper letters and articles on the subject became common beginning
around the end of 2015, and often portrayed us in this negative way as well.
15. An example of internet promotion of our neighborhood was commercial LL Bean
tours led by Concord resident Lisa Pohl. Ms. Pohl solicited outdoor enthusiasts via the
“meetup.com” website, attracting paying customers from as far away as Portsmouth, New
Hampshire, in groups as large as 20 people, each driving separately to our road.
16. When “No Parking” signs were installed to eliminate parking on the east side of
the road in late 2015, Ms. Pohl’s large groups of paying customers were unable to find legal
parking spots. Her response was to write a letter-to-the editor of the local newspaper
complaining of the newly limited parking and encouraging Concord citizens to write to the
Select Board to demand restoration of more parking. However, her letter did not mention that she
was running commercial tours from the road.
17. I wrote a letter to the Select Board pointing out Ms. Pohl’s inappropriate use of
the road, and my wife contacted LL Bean senior management, which directed Ms. Pohl to cease
using the mostly private Estabrook Woods for her LL Bean commercial ventures.
18. Because of Ms. Pohl’s complaints, and the complaints of others, the “EWASC”
(Estabrook Woods Access Study Committee) was formed to study access issues of the Estabrook
woods. A primary goal was to make woods access parking recommendations to the Town.
19. Astonishingly, despite my pointing out to the Select Board Ms. Pohl’s
disingenuous solicitation for more Estabrook Road parking spots, she was chosen to be on the
EWASC over numerous far more qualified volunteers which included two lifelong Concord
residents old enough to know personally the history of the Estabrook Woods back to the 1960s.
4
20. Other highly inappropriate EWASC member choices were made, including Justin
King, who shortly prior to being selected wrote to the Select Board, falsely claiming that “The
truth is that a cabal of owners worked with the police and the power centers in the town to
essentially turn a public road into a private road.”
21. Also chosen but inappropriate was Kathy Angell, who was announced as the
“Trails Committee representative,” but the minutes of Trails Committee meetings do not reflect
her being chosen by the committee. Rather, the minutes simply note that, “Kathy has been
appointed to the town’s Estabrook Woods Access Committee.” Kathy was at that time future
sister-in-law to Select Board member Carmin Reiss, who wrote the charge for the EWASC and
participated in choosing members.
22. The minutes of the very first meeting of the EWASC indicate that members King
and Angell inquired about access to Town Counsel even before any discussions relevant to the
committee’s objectives had begun.
23. The Town’s Memo cites the EWASC conclusion that ensuring “permanent public
access” at the Estabrook Road access point to the woods was “the primary and urgent goal” of
the committee. Such “permanent public access” is stated not as an aspiration, but rather as a
forgone conclusion in the EWASC Final Report. With hindsight into the process used to reach
this conclusion, I understand this result to have been preordained.
24. As pointed out in the Town’s memo, the EWASC also made recommendations on
Estabrook Woods entry points Punkatasset Hill and Monument Farm Road, which are both
Town-owned properties. The parking objectives of the Committee at these locations could not be
achieved due to objections of the abutters and owners. While the Town has spent more than
5
$1,000,000 to sue us to achieve the Estabrook Road recommendation of the Committee, it simply
ceased efforts at these other access points when objections were voiced.
25. Around 2015, Towns surrounding Concord were restricting off-leash dog
walking, causing Estabrook Woods, which had no posted leashing requirements for dogs, to
become dominated by visitors with off-leash dogs. Dogs began to run freely throughout the
woods, which was inconsistent with the woods' purpose of being a wildlife preserve. Because the
woods has numerous owners, Mr. Rasmussen had the idea of gathering all the land owners
together to create a unified set of rules for use of the woods, and posting such unified rules at all
entry points.
26. We attended this meeting, which included Concord's Director of Natural
Resources Commission, Delia Kaye, because of the approximately 100 acres of Town-owned
land in the Estabrook Woods at Punkatasset Hill. This land is directly accessible from its own
Monument Street entrance and comprises just 7% of the approximately 1400 acres of Estabrook
Woods.
27. One of the agreed upon rules formulated at this meeting was that "dogs must be
on leash at all times," which met with enormous backlash from the dog-owning community, who
again were operating under the false impression that Estabrook Trail ran through public land
rather than privately owned land, and strongly preferred to release their dogs while in the woods.
28. Shortly after Estabrook Woods was posted “dogs on leash,” the Town initiated
discussions of similar restrictions on a subset of its open space areas. Many members of the dog
owners’ group, Concord Unleashed, members blamed Neil Rasmussen for this, and by
association, my wife and me.
6
29. In response to imminent adoption of dogs-on-leash rules at a subset of the Town’s
open spaces, the special interest group “Concord Unleashed” was formed to promote the interests
of unleashed dog walking, with websites, 1,189 petition signers, and two Town Meeting Warrant
Articles to put the brakes on dog leashing rules.
30. Concord Unleashed members have been by far the most vocal proponents of the
lawsuit filed against us, making frequent internet postings which repeat the unsubstantiated
Town claim that the Estabrook Trail has been in continuous public use for hundreds of years, and
even offering to fund legal action against us.
31. I am aware that the majority of the many letters of complaint which the Town
talks about in their papers were coordinated by Concord Unleashed.
32. As my wife explained in her affidavit, during this timeframe, members of the
Town Select Board did not act to inform or restrain the public when we reported to them
numerous issues in our neighborhood, and in some case spread false information about my wife
and me and our efforts to protect our property rights.
33. Perhaps the most egregious example of this was in June 2018, when the Chair of
the Select Board made a knowingly false statement at a Select Board meeting which accused my
wife of placing poison on our property to “cause anxiety among those who walk their dogs in the
vicinity of [our] property and were trying to send a message.” While he did not mention either
our names or address, his friend the founder of Concord Unleashed subsequently posted the
video of the statement on the two Concord Unleashed websites and effectively identified us and
the Rasmussen family as the perpetrators using the well-understood designation of “Estabrook
abutters.” Neither the Select Board or Town ever sought to correct or retract this outrageous
outright lie.
7
34. As my wife has also detailed in her affidavit, with the increased use of Estabrook
Trail, we have experienced increased use and abuse of our private property, including with
people walking into our yard and leaving litter on the trail. Additionally, during the warm
weekend of January 11-12, 2020, I observed and photographed cigarette butts that had been
dropped on the ground on our property, and which burned surrounding fallen leaves.
35. After the Governor of the Commonwealth issued various orders in March 2020
concerning the COVID-19 pandemic, use of Estabrook Trail by private citizens sharply
increased. Unfortunately, trail users failed to observe social distancing. Trail users often failed to
leash their dogs.
36. On April 1, 2020, one trail user’s unleashed dog left a nearby trail across the
Rasmussens’ backland, entered onto the non-trail portion of Neil Rasmussen’s land, bit him, and
drew blood. Trail users have continued to discard lit cigarette butts on the trail as I previously
observed.
37. As a result of this increased use and the associated dangers to us, on April 5,
2020, at 7:30 P.M., my wife and I, along with the Rasmussens, closed the trail. A rope was used
to tie the gate shut. Mr. Rasmussen made and erected three signs which say “CLOSED For
Safety Reasons Until Further Notice.”
38. Mr. Rasmussen also replaced the welcome sign with a sign warning the public
against entry. Cones were also placed in the parking area which is situated on Mr. Rasmussen’s
land approximately 200 feet to the south of the trailhead.
39. We have closed access to Estabrook Trail in the past for safety reasons.
Specifically, in April 2017, a coyote protecting her pups in her natural habitat, attacked at least
8
four dogs. In order to allow the coyote to wean her pups, and out of concern for the safety of the
trail users, their children, and their dogs, my wife and I closed the trail.
40. In any event, after we closed the trail due to COVID-19, we experienced even
more backlash from members of the community. As indicated above, the large number of letters
which the Town claims to have received is in part due to special interest group Concord
Unleashed sending a mass emailing encouraging letters to the Town Manager and Select Board. I
am aware that the Town worked with a member of Concord Unleashed (Rosa Hallowell) to bring
the lawsuit, even as it kept all other Concord citizens in the dark about its plans, including my
wife and me.
41. Although the Town in this lawsuit has sought to portray our concerns about this
pandemic as a “pretext,” in fact the Town shared this concern with respect to its own trails.
Incredibly, however, I have discovered that the Town has deleted from its public records
evidence of its prior consideration of trail closing due to public safety concerns.
42. For example, based on my internet research, I discovered that the Town
“scrubbed” its COVID-19 page of comments by Town Manager Stephen Crane about social
distancing issues at open spaces. The Town also scrubbed the public comments from its April
16, 2020 Select Board meeting of statements suggesting the Town was about to close trails.
43. I have never heard of any town in America that is so actively engaged in such a
comprehensive campaign to deprive its citizens of their private property rights as the Town has
in this case. Not only has the Town denied, without any basis, that we own Estabrook Trail, the
Town has actively aided and encouraged our fellow citizens to view us falsely as some kind of
enemy within our own Town by spreading false information about us. In addition, the Town has
9
deprived us of the protection of the police and other Town services when we have tried to protect
our rights .
44. So that we can finally end this years-long nightmare , I implore the Court to act as
quickly as possible to adjudicate this matter.
Signed and sworn to under the pains and penalties of perjury this
Lday of July , 2020.
Jll_
Brooks S. Read

By their attorneys,
/s/ Robert Nislick
____________________________________
P.O. Box 5207
(508) 405-1238
rob@nislick.com

By their attorneys,
____________________________________
Todd & Weld LLP
(617) 720-2626
11

Kevin D. Batt, Esq.
Boston, MA 02109
(617) 621-6500

Boston, MA 02109
(617) 227-7940
/s/ Robert Nislick

____________________________________
Robert Nislick
12
LAND COURT

__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
v. )
)
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
AFFIDAVIT OF LESLEE W. ROBB
I, Leslee W. Robb, under oath, hereby depose and state as follows:
1. I am one of the named Defendants in this case along with my husband, Russell
Robb III. I am providing this affidavit to oppose the Town of Concord’s motion for a preliminary
injunction.
2. I have extensive knowledge about the ownership of our property, which includes
the disputed Estabrook Trail, based upon discussions with my husband and his family over the
course of several decades.
3. My husband and I are trustees of the Pippin Tree Land Trust (“PTLT”), which
owns the fee in the portion of Estabrook Trail which abuts our lot to the center line. Our land is
situated northerly of the land owned by owned by our neighbors and fellow Defendants, the
Read-Kays. The portion of Estabrook Trail which is owned by the PTLT leads into another trail
which is also on land owned by the PTLT, which is not the subject of this litigation.
4. My husband’s family, the Robbs, have owned property on the border of Estabrook
Woods since 1900.
5. The land along Legacy Trail, which connects Punkatasset to Estabrook Road, was
purchased in 1911, the north east corner of the Estabrook Trial/Legacy Trail intersection was
purchased in 1944, and the south piece running along Estabrook Road to the intersection was
purchased in 1982.
6. The land purchases of 1911 and 1944 were held in trust by my husband’s
grandfather for the benefit of his children.
7. My husband’s father, Russell Robb Jr., along with Sted Buttrick and Raymond
Emerson, were the landowners who petitioned for the discontinuance of Estabrook Road in 1932.
The road was impassable at times and unused by the general public. He and Mr. Emerson were
extremely concerned that the picnickers seeking to enter the woods presented a serious fire
hazard. Both my father-in-law and his neighbors had experienced fires in the past from the
public’s attempt to use the area.
8. The petition for discontinuance was, of course, successful and when Estabrook
Road was discontinued in 1932 at what is now known as Estabrook Trail, Raymond Emerson
placed a barrier across the road. That barrier remained in one form or another (double slats, a
chain, a chain link fence, a formal gate) throughout the ownerships by Emerson, Hill, and
Rasmussen – all of which my husband and I have viewed in person over the years.
2
9. I married my husband in 1970 when Raymond Emerson still owned his land and,
since that time, I have been the person most responsible for the management of our farm and
forest property. We have a 45-acre farm abutting our 73-acre PTLT property.
10. We walked this land daily for 45 years with our dogs and seldom saw anyone
except for some locals who knew one of the landowner families and had permission to be on the
trails. Never did we encounter anyone representing the Town of Concord.
11. In the 1970s we owned a log cabin on the PTLT property. Later, some adjoining
landowners donated land to Harvard and Harvard placed it on a University map, which led to
others using the cabin without permission. We finally had to take it down for fear of fire.
12. The land, which is currently held by the PTLT (a corporation) is classified as
forestry land under General Laws Chapter 61 and has been managed as a timber lot by the
current generation of my family since 1978. Our trails, including the unpaved portion of
Estabrook Road (i.e. Estabrook Trail), have been utilized by us to remove large pine for lumber
and deciduous trees for firewood. Many trails that have now been allowed to grow over were
designed as part of a horse cross country course for our adjacent horse farm.
13. In 1982, prior to the purchase of the so-called Buttrick property, which is a piece
that runs along the first 300 yards of Estabrook Trail, we asked permission from the then gate
owners, David Emerson and Douglas Lien, for entrance to develop one house lot should it ever
become possible. Their response was to agree to improvement by us, at our expense, of that
portion of such private way to the minimum extent which may be required by the Planning Board
for one residence. This grant makes mention of the “present bars” at the southernly terminus of
Estabrook private way. Exhibit A.
3
14. In October of 1994, in a letter from Thomas Wray Falwell of Comins and
Newbury, to David Rosen of Landvest who was engaged to submit an appraisal for estate
planning purpose, Mr. Falwell refers to the 1932 discontinuance, the road blocked by a barrier,
and access being dependent on the legal right of access for development given the physical
condition of the non-public and abandoned portion of Estabrook Road. Exhibit B.
15. In a February 23, 1995 letter, Kevin Hurley of Hurley Associates, former Town of
Concord land planner, states given the history of the private way portion of Estabrook Road from
the end of the public way at the former Emerson driveway to the Concord/Carlisle town line: “I
am of the opinion that it is not likely that the Town would willingly agree to permit the Parcel B
(which included the Buttrick piece) to be used even as a single building lot. I agree with Thomas
Falwell that any attempt to open up and improve any part of the private way portion of Estabrook
Road will meet with substantial Town Board opposition.” Exhibit C.
16. In a March 14, 1995, appraisal done by Jon Avery of Avery Associates for
Concord Land Conservation Trust, he states “after discussing the subject property (PTLT) with
members of both the Concord Planning and Building Departments, it is our opinion that the
subject DOES NOT have legal access from Estabrook Road. Although it has 1000+ feet of
frontage on a portion of this roadway, this section was apparently abandoned by the Town in
1932. At the present time, this section of Estabrook Road is a narrow dirt cart path.” Exhibit D.
17. Based on this information that these experts had obtained from the Town
regarding the status of Estabrook Road – that it was a private way with no access for us as
owners – in 1995 we, through PTLT, sold a forest protection easement to the Federal
Government under their Forest Legacy Program at a greatly depreciated price losing some $4.3
million in family land value (as of 1995).
4
18. While there was little change concerning the use of Estabrook Trail over the next
several years, we began to see a change in pattern of use of Estabrook Trail around 2013. This
change of use was because the Town included all trails on private property in or near Estabrook
Woods on Town maps and put them up on the internet. We seldom saw anyone we knew using
the Estabrook Trail and the increase in use was substantial.
19. Shortly after the Town notified us of this lawsuit in 2017, I decided to post our
property because there appeared to be confusion by the public thinking all land surrounding
Estabrook Trail was public, when in fact it is all private.
20. When posting the sign at the intersection, my employee and I were accosted by a
couple demanding to know who Pippin Tree Land Trust was.
21. Over the past two and ½ years, we have suffered destruction of stone wall
boundaries on multiple occasions for which the court has offered no relief either in issuing a
criminal complaint, or trespassing complaint or call for damages against the party involved.
Some walls were built by our stone mason, at great expense to us, to resemble the antiquated
walls currently in existence.
22. My husband and I have communicated extensively with the Concord Police
Department concerning this destruction of our stone walls by a certain individual on multiple
occasions. I personally communicated with the Concord Police Department on September 20,
2019, September 25, 2019, November 5, 2019, December 1, 2019, December 5, 2019, December
24, 2019, and January 6, 2020.
23. On January 6, 2020, the Concord Police Department represented to me that it
would be seeking a criminal complaint in Concord District Court against the alleged suspect.
5
We understand that the suspect eventually appeared at a clerk’s hearing at Concord District
Court.
24. In the meantime, our stone mason was subjected to vernacular verbal abuse by the
members of the public which makes he and his son reluctant to work for us.
25. We have on camera a trespasser yelling curse words at us twice and another
woman giving us the finger on our own land.
26. We have videos of men urinating on our gates and climbing the gates onto posted
property.
27. Due to the failure of the Town to observe our private property rights in the
Estabrook Trail entrance from Estabrook Road, this entrance is a liability for us as the public
does not stay on Estabrook Trail. Instead, they overrun our forest conservation land causing
continual problems with loose dogs entering vernal pools, mountain bikers speeding on trails,
and walkers going off trail, people picking diminishing flora and fungi, and doing other damage,
all on our posted, private property.
28. In addition, we have observed smokers discarding cigarette butts near the trail,
which creates a fire risk for our property, which is located more than half a mile from the nearest
hydrant.
29. On the other side of our property, it is common for trespassers to climb over our
stone boundary walls from the Town-owned land at Punkatasset. If Estabrook Trail is deemed
public, not only would this be contrary to the way this private land has been owned and managed
by the Robbs and our neighbors since 1932, I fear we will continue to be overrun from both sides
of our property by members of the public who have been misled into thinking that this entire area
is a public resource for their use and enjoyment. While my husband and I have permitted
6
incidental use of our land by the public, it was never our intention to create a recreation area for
the public. Instead, we are conservationists focused on the preservation of natural resources and
forestry.
30. This lawsuit has interfered with our intent to dissolve the land trust for estate
planning at a very late time in our lives. In its present form, Pippin Tree Land Trust is a
corporation. Non-profits are unwilling to accept the donation of the corporation itself.
Dissolving the corporation during the lawsuit would create a double financial burden, paying for
the lawsuit (which at present can be charged to the corporation) or paying gains taxes on
dissolution plus the expense of the lawsuit. Therefore, the lawsuit is effectively stalling our estate
planning for my husband and me, who are each in our 80’s. This could eventually cost our
family $1.5 million in estate taxes.
31. Due to the Town’s false claims about owning our land and the false stories the
Town has publicized about us and our neighbors, our reputations have been denigrated by the
public after 120 years of family lifelong environmental work protecting our natural areas and
currently preserving our own forest property which entails preservation of wildlife and riparian
areas.
32. As mentioned, my husband and I are each in our 80’s. We are each struggling
with health issues. My husband had a stroke in February of 2020, has Atrial Fibrillation, and now
cancer. Stress is dangerous for him. I have chronic fatigue/fibromyalgia which stress causes joint
pain to the point of being bedridden. I am the sole manager of the farm and land trust.
33. This lawsuit has and is costing us in a multitude of incalculable ways – most
importantly in depriving us of the ability to use and control our private property, which has been
7

By their attorneys,
/s/ Robert Nislick
____________________________________
P.O. Box 5207
(508) 405-1238
rob@nislick.com

By their attorneys,
____________________________________
Todd & Weld LLP
(617) 720-2626
9

Kevin D. Batt, Esq.
Boston, MA 02109
(617) 621-6500

Boston, MA 02109
(617) 227-7940
/s/ Robert Nislick

____________________________________
Robert Nislick
10
A
B
C
D
LAND COURT

__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
)
v. )
)
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
AFFIDAVIT OF ROBERT NISLICK
I, Robert Nislick, do hereby depose on oath and state as follows:
1. My name is Robert Nislick. I am an attorney admitted to practice in the
Commonwealth of Massachusetts and I am counsel to the defendants Susannah Kay, Brooks S.
Read, Russell Robb III, Leslee Robb, and Thomas Falwell, Trustees of The Pippin Tree Land
Trust in this matter.
2. The defendants Brooks S. Read and Susannah Kay reside at and hold title to 366
Estabrook Road pursuant to a deed dated February 9, 2018, and filed with the Middlesex South
Land Court Registry District on February 15, 2018, in book 1522, at page 141, document number
1782047, transfer certificate of title number 287086. (A true and accurate copy of the deed is
attached hereto as EXHIBIT “1”).
3. The defendants Russell Robb, Leslee W. Robb, and Thomas Falwell, Trustees of
Pippin Tree Land Trust hold title to 47Y Estabrook Road pursuant to a deed dated December 26,
1985, and recorded at Middlesex South Registry of Deeds in book 16666, at page 438. (A true
and accurate copy of the deed is attached hereto as EXHIBIT “2”).
The Discontinuance of Estabrook Road
4. On April 13, 1932, Robert Bygrave, counsel for three Concord citizens, Raymond
Emerson, Stedman Buttrick, and Russell Robb requested the Concord Board of Road
Commissioners to petition the County Commissioners for the closing of a certain portion of
Estabrook Road, from a point near where the pavement now ends, northerly to the Carlisle line,
as a public way. (True and accurate copies of the discontinuance documents are attached hereto
as EXHIBIT “3”).
5. The “reasons for this being that the road is almost impassable and is used only by
picnickers and is a serious fire hazard. There are no houses on this stretch of road in Concord.”
(See EXHIBIT “3”).
6. The Board of Road Commissioners voted to grant the request. (See EXHIBIT
“3”).
7. Then, the Concord Board of Road Commissioners filed a written petition the
County Commissioners for the County of Middlesex. (See EXHIBIT “3”).
8. The petition stated in part,
“that Estabrook Road . . . is a public way, and that common convenience and
necessity no longer require that such way shall be maintained in a condition
reasonably safe and convenient for travel from a point on said Estabrook Road, at
the entrance to R. Emerson driveway . . . to the boundary line between the Town
2
of Concord and the Town of Carlisle, on said Estabrook Road; that said way from
said point . . . has for a long period ceased to be in general public use; that there
are no residences served by that portion of said way sought to be discontinued as
a public way; and that it would be an inordinate and unreasonable expense upon
said Town of Concord to keep said way in a condition reasonably safe and
convenient for travel.
WHEREFORE, the said Road Commissioners prey that the County

Commissioners adjudicate that said way shall hereafter be a private way, and that
the Town of Concord shall no longer be bound to keep the same in repair, upon
condition that the said Town give sufficient notice to warn the public against
entering thereon by the posting of adequate notice or notices where such way
enters upon or unites with an existing public way.”
(See EXHIBIT “3”).
9. On June 7, 1932, the Road Commissioners of the Town of Concord appeared at a
meeting of the County Commissioners for the County of Middlesex, and prayed, “that a portion
of Estabrook Road, in said Concord, be discontinued as a public way, and thereafter be a private
way, And at the time of said view and hearing, no person interested appearing to object to the
discontinuance of a portion of said highway as a public way, said Commissioners found that
common convenience and necessity no longer require such way to be maintained in a condition
reasonably safe and convenient for travel, and adjudicated that said way shall hereafter be a
private way . . . .” (See EXHIBIT “3”).
10. On June 29, 1932, the Commissioners met, and on July 9, 1932, made final return
that, “in accordance with said petition determine that common convenience and necessity no
longer require the way . . . to be maintained in a condition reasonably safe for travel, and
adjudicate that said way shall hereafter be a private way, and that the town shall not longer be
bound to keep the same in repair. . . . And said Commissioners further provide that in accordance
with Chapter 289 pf the Acts of 1924 this junction shall take effect provided that sufficient
notices to warn the public against entering on said way are posted where said road enters upon or
3
unites with the existing public way at said Emerson driveway, and also at the town line between
Carlisle and Concord”. (See EXHIBIT “3”).
11. The Read-Kay and Robb defendants’ opposition materials refer to several
additional documents. True and accurate copies of those documents are attached hereto. Those
documents are:
Exhibit Description
4. Vannozzi Deposition Transcript, pp. 48, 86, 122-123, 168

5. Heitert Deposition Transcript, pp. 19-20
6. Whelan Deposition Transcript, pp. 56-57, 59-60, 62-63, 72-73, 144-147,
161-162, 167, 185-186, 340-345, 350-353, 355-356, 360-361, 381-382
7. Whelan Deposition Transcript, Ex. 8
8. Concord’s Third Supplemental Response to Defendant Neil E.
Rasmussen’s First Set of Interrogatories, Response No. 12, Whelan
Deposition Transcript, Ex. 3
9. Whelan Deposition. Tr. at 350-352, Ex. 22 at CONCORD_0005807,
0005809
10. Hearing on Defendants’ Motion for Discovery Orders, (Speicher, J.) (Feb.
5, 2019), pp. 32, 34
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 17 TH DAY OF JULY
2020.
/s/ Robert Nislick

__________________________________
Robert Nislick
4

By their attorneys,
/s/ Robert Nislick
____________________________________
P.O. Box 5207
(508) 405-1238
rob@nislick.com
__________________________________
Todd & Weld LLP
One Federal Street
Boston, MA 02110
(617) 720-2626

Kevin D. Batt, Esq.
Boston, MA 02109
(617) 621-6500
5
Boston, MA 02109
(617) 227-7940
/s/ Robert Nislick

____________________________________
Robert Nislick
6
LAND COURT

__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
)
v. )
)
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
APPENDIX
The defendants Susannah Kay, Brooks S. Read, (the “Read-Kay defendants”), and
Russell Robb III, Leslee Robb, and Thomas Wray Falwell, Trustees of the Pippin Tree Land
Trust (the “Robb defendants”) and hereby file this Appendix which contains materials cited in
their opposition to the town of Concord’s motion for preliminary injunction.
Exhibit Description
1. Read-Kay deed
2. Pippin Tree Land Trust deed
3. Discontinuance documents, 1932
4. Vannozzi Deposition Transcript, pp. 48, 86, 122-123, 168
5. Heitert Deposition Transcript, pp. 19-20
6. Whelan Deposition Transcript, pp. 56-57, 59-60, 62-63, 72-73, 144-147,
161-162, 167, 185-186, 340-345, 350-353, 355-356, 360-361, 381-382
7. Whelan Deposition Transcript, Ex. 8
8. Concord’s Third Supplemental Response to Defendant Neil E.
Rasmussen’s First Set of Interrogatories, Response No. 12, Whelan
Deposition Transcript, Ex. 3
9. Whelan Deposition. Tr. at 350-352, Ex. 22 at CONCORD_0005807,
0005809
10. Hearing on Defendants’ Motion for Discovery Orders, (Speicher, J.) (Feb.
5, 2019), pp. 32, 34

By their attorneys,
/s/ Robert Nislick
____________________________________
P.O. Box 5207
(508) 405-1238
rob@nislick.com
__________________________________
Todd & Weld LLP
One Federal Street
Boston, MA 02110
(617) 720-2626

Kevin D. Batt, Esq.
Boston, MA 02109
(617) 621-6500

Boston, MA 02109
(617) 227-7940
/s/ Robert Nislick

____________________________________
Robert Nislick
1
/
QUITCLAIM DEED
//
I, BROOKS S. READ, a married man, married to Grantee, of366 Estabrook Road,
Concord, Middlesex County, Massachusetts 01742, for consideration paid, and in full
consideration of ONE ($1.00) DOLLAR(S),Grant to BROOKS S. READ and
SUSANNAHKAY, husband and wife, as Tenants by the Entirety, both of 366 Estabrook
Road, Concord, Middlesex County, Massachusetts 01742, with QUITCLAIM
COVENANTS:
That certain parcel ofland with the buildings and improvements thereon situate in /
Concord in the County of Middlesex, Massachusetts, described as Lot 8 on Land Court
Plan 10163G, a copy of which is filed in the Registry of Deeds for the South Registry
District of Middlesex County.
For title see Certificate of Title No. 206903.
PROPERTYADDRESS:366 Estabrook Road, Concord, Middlesex County,

Massachusetts 01742
'l...o C q<r7
1782047
WITNESS OUR HANDS AND SEAL THIS 9th DAY OF FEBRUARY, 2018.
t;Or])kS ~
BROOKS S. READ
COMMONWEALTHOF MASSACHUSETTS
MIDDLESEX, SS.
On this 9th day of February, 2018, before me, the undersigned notary public, personally
appeared BROOKS S. READ and SUSANNAHKAY proved to me through
satisfactory evidence of identification, which were Massachusetts Driver's Licenses, to
be the person(s) whose name is signed in the preceding attached document and
acknowledged to me that he/she/they signed it voluntarily, as his/her/their free act and
deed, for its stated purpose.
Notary Public: ~ JVec,.,rc ·

My Commission Expires:
5-;,1-1-'I-
JOSHUA D. NEGRICH
~ Notary Public
lfillreommonwealtn of Mc,...,d,usetts
~ My Commt .. ion Expires
May 31, 2024
d
DOCUMEHT 01782047
•
Southern MiddleseK LANOCOURT
REGISTRY
DISTRICT
RECEIVED
FORREGISTRATION
On: Feb 15,2018 at 03:44P
Oocwtent Fee: 125.00
ReceiPt Totol• $375.00
....
'<I'
0
NEW•CERT267086 BK01522 PG H1
N
....
...
00
OLD: CERT206903 BK1164 PG 153
IQ:
NI
"°
~
'
a,
,0
w 'Z
a:
a 1~
0
< ~
ffi ~
~ ~
2
------ -----
BKlbbbbPG~3B \
We, Russell Robb 111 and Leslee W. Robb, husband and wife, both of
,..,.Concord, Middlesex County, Massachusetts, as tenants by the entirety,
;::for One Dollar ($1.00) consideration paid, grant to Russell Robb, also
cc known as Russe 11 Robb 1 11 , of said Concord I Les I ee W. Robb of said
1;;'Concord, and Thomas Wray Falwell of Ari ington, Massachusetts, Trustees
::: under Declaration of Trust dated December ~6, 19d5, to be recorded herewith,
Lr:> knownas 11The Pippin Tree Land Trust, 11 with QUITCLAIM COVENANTS, that
~ certain parcel of unimproved land shown as Parcel Bon a plan of land to
~ be recorded herewith (on 2 sheets) entitled 11
Compiled Plan of Land in
~ Concord, Mass. Owned by Leslee and Russell
11
Robb 111 by Nelson Engineering,
Inc. - Civil Engineers, 144 Sudbury Road, Concord, MA, Scale I in.= 100 ft.
dated December 13, 1984, bounded and described as follows:
SOUTHERLY, EASTERLY,
SOUTHERLYagain, and
EASTERLY again by other land of the grantors shown as Parcel A
on said plan by eleven (11) courses measuring One
Hundred and Fifty-One and 31/100 (151.31) feet; One
Hundred and 00/100 {100.00) feet; One Hundred and
Sixty-Two (162.00) feet; Two Hundred Sixty-Three and
35/1 00 (263. 35) feet; One Hund red Thi rty-Fou r and
50/100 (134.50) feet; Five Hundred and Fifty-Three
and 18/100 (553. 18) feet; Two Hundred and Forty-Eight
and 60/100 (248.60) feet; One Hundred and Seventy-Seven
and 00/100 (177.00) feet; One Hundred and Ten and
36/100 (110.36) feet; Sixty-Nine and 94/100 (69.94)
feet; and Eighty and 70/100 (80.70) feet, respectively.
SOUTHERLYand
SOUTHWESTERLY by land now or formerly of Umphrey as shown on said
plan by five (5) courses measuring One Hundred Forty-
l)s. Seven and 19/100 (147.19) feet; Ninety-Six and 59/100
(96.59) feet; Two Hundred and Fifty-Seven and 86/100
~
(257.86) feet; Seventy-Nine and 68/100 (79.68) feet;
and One Hundred and Four and 68/100 (104.68) feet,
respective I y.
WESTERLYand
'-' SOUTHWESTERLY by land now or formerly of Lien, as shown on said
j
i
:1
"'
'-,)
plan by two (2) courses
Fifty-One
Eighty-Seven
and 78/100
and 40/100
measuring Three Hundred and
(35 I. 78) feet
(587.40)
and Five
feet,
Hundred
respectively.
~ NORTHERLY,WESTERLY,
SOUTHERLYand
NORTHWESTERLY by Estabrook Road and a stone wal J bounded passage
from Estabrook Road as shown on said plan by eleven
( 11) courses measuring Two Hundred and Seven and 24/1 OD
(207.24) feet; Three Hundred Ninety-Six and 00/100 (396.00)
feet; Three Hundred Sixty-Four and 8/10 (364.8) feet,
.. more or less; Thirty

One Hun~red T~nty-Six
less;
and 1/10 (30. l) feet,
S1xty-S1x and 8/10 (66.8) feet,

a~d 00/100 (40.00) feet,
more or less;
and 00/100 (126.00) feet,
more or less;
more or
more or less; One Hundred and

Forty
Five and 00/100 (105.00) feet, more or less; Four Hundred

and 00/100 (400.00) feet, more or less; Three Hundred
Seventy-Five and 00/100 (375.00) feet, more or less;
and One Thousand (1000) feet, more ~r less, respectively.
I
\
NORTHEASTERLY,
NORTHWESTERLY,
SOUTHWESTERLY,
NORTHWESTERLY
and
NORTHEASTERLY by land now or formerly of Harvard College as shown
on said plan by fifteen (15) courses measuring Three
Hundred and Sixty and 00/100 (360.00) feet, more or
less; One Hundred and Eight and 2/10 (108.2) feet,
more or less; One Hundred Seventy-Seven and 1/10
(177. l) feet, more or less; Sixty-Seven and 00/100
(67.00) feet, more or less; One Hundred Eighty and
6/10 (180.6) feet, more or less; One Hundred Ninety-
Eight and 7/10 (198.7) feet, more or less; One Hundred
Twenty-Three and O.D/100 (123) feet, more or less; One
Hundred Twenty-Nine and 00/100 (129) feet, more or
less; Three Hundred and Four and B/10 (304.8) feet,
more or less; Thirty-Two and 5/10 (32.5) feet, more
or less; One Hundred Sixty-Seven and 2/10 (167.2) feet,
more or less; Two Hundred and One and 1/10 (201.l) feet,
more or less; One Hundred and Five and 7/10 (105.7)
feet, more or less; Five Hundred and Two and 5/10 (502.5)
feet, more or less; and Sixteen and 1/10 (16.1) feet,
more or 1 ess.
EASTERLY,
SOUTHERLY
NORTHEASTERLYand
EASTERLY by land of Staniar as shown on said plan by four (4)
courses measuring Four Hundred and Sixty and 00/100
(460.00) feet, more or less; Two Hundred and Eight and
83/100 (208.83) feet; Two Hundred and Thirty-Six and
95/100 (236,95) feet; and Eighty-One and 42/100 (81.42)
feet, respectively.
This conveyance is made subject to and with the benefit of such

easements, restrictions, reservations and r'ights of record, if any, as
now in full force and applicable.
The consideration for this conveyance is nominal, hence no deed excise

stamps a re affixed hereto, none being required by law.
WITNESS our hands and seals this 2, day of December, 1985.
~d(~~
RusseiRobb lJI
Leslee W. Robb
COMMONWEAL
TH OF MASSAQWSETTS
1985
Then persona 11 y appeared the abovenamed Russe 11 Robb I 11 and Le-s.ieti':!l~r.

W. Robb and acknowledged the foregoing instrument to be their fre~-~fi-:#.~:.;
deed, before me. £ r~ »1:Y:.:c}':.
Jfuta ry Pub l i Cf · :..::. -=z, .'.:J" ::-
My commission expires: :,-_..,
.• 33il
/)-~~--~:.;rr
3
It was also sugge sted that 1\1r. Lyman and the County Cormni ssi.one.l's
be contactecl as s.oon as possible :l.n the hop@s th a t they might contribu te
a sufficient sum to aJ_so enable us t o ts.ke up G.e.ff'ey 1 s bid provided,
(
however, that D'.t\more is found unqualified.
Mr . Stone felt that the least the. Water. D'3pa.rtment might or• should
contribute was ti509 ~00.
Meeting adjourned at 10 p.m.
TOW1~OF CONCORD, MASSACHUSETTS

Board . q f Road .Commi s sio~ers
Wep.nehday ,Ap ril 13, 1932:.
A meeting of the Board of .Road Commissioners was held t,&i s .

evening at '7 :3 0 o'clock. All members present. Super-intendant Joslin
present.
Mr. Robert Bygrave appeared befor-e the Board· representing
Raymond Emerson, Stedman Buttri .ck and Russell Robb and requeated
the Road Commiss i oners · to petition the County Commissioners for
the closing · of Est~brook Road from a point just norther ly of (
Raymond Emerson's bungalow to the Carlisle _ line as a public way.
His reasons for th:ts lJeing that the road is now almost impassable
and is used only by picknickers and is a serious fire hazard.
·There · a:re no houses on this stretch of road .i n . Concord. The Board
voted to gr,ant Mr. Bygrn ve I s requewt and requested him to dx-aw the
necessa1 •y petition and submit :i.t to the Boar(i for thmilr signature.
Mr. · William Kuasin jo.ined thA boa1•d at this · poin t and .further
d is~uss ion of the bifs on the Elm Street Bridg~ t6ok place.
· Having received a letter from D 1 Amore Cons ti •uction· Company s.tatinp;
that they h0;d made a error of $ 1,000 in theil• bid, it was voted -
.nbtlt to conslder their bid any further ahd return the {plOO depos-
ited. Mr. Kussin and M'i"-. Sheehan then reported on the result of
·their .visit • to Mr . Lyman of the State Department of Public Wo1•ks
and Mr. Kendall of the County Commission ers . After presenting
the · new plans for the bridge, Mr. ·Lyman and fhe Associate Com-
missioners agreed that the new plans had much more merit than
those submi ttec1 duri.ng bhe winter months and thRt pr .ovicle .d the
legislature .acted favora~ly on their budget . they would con tr i -
· but $1,500 to this work;. · Mr. Kendall stated that upon filing
the pl'.'oper petition he had no do ubt tp.at the · Coun Commissioners
would d o the same . as the Sta.te would do o 7 · ·
A petition to the County Commissioners was then ,,drawn up an d

s~~ned by .the Board of Road Commissioners and the SUpf>rintendent ·
was inst ructed to · ta ke the necessary steps toward filing a peti-
tion with .the State.
May 19,. 1932 Co nt.
i :
The .Superintendent 1~epor•ted c onsideN tllle difficult y wtt h
the dit'fe J:-ent f'armet •s in plmvin g and cultiv a t:tn~ too close t o the
travel l e.¢! wa y, parti cu.1.nrly with Mr. \Villiam CJ•ossley t
on Old , '!
Marlboro Roed. The Superint endent wa~ instructed to call Mr.

1
Crossley s a t tention to the damage done by l etter and if he di d
I
not discontinue tlle practice other mi:rnns would be taken to prevtmt

da.magi n g t ho road .
·' Mee tin. .~ ad,io>...1.p

n ed at 10 p .m.
TOWW OF col'TCQRD ' M/\SSJ\.CHU SET ~rs

', Board of Road Commissioners
l I
Wednesday June 8 ~ 1932
A meetin v~ of. the _ Board of Hoac.J. C.:ommissi onei- 8 was h eld this eveni~ .
All members · presen t. · Super •int end ent J o slin pr-osent.
Bidfl for • coa l we1•e .rec eived as fol l ows: Whltney Coal & Grain c·(,,
approKimateJ.y· 2~ tons immediate:ctelive ri a t $11 .BA pe~ to~. Bnlence

of Ol"der $12.38 a t o n. Co.ncord Coal & Wood Co., fla t price of 1•.~~"37
f! ton. Order was awe.ra.ed to Whitne y Coal & Grain Compan ;y.
Petitio n for the d i s co nt:i.mrnnce of ltst ~ brook Roa d 9. s a public

way fro m Raymond ~merson 's drive way to ~he Carli sJ.e li ne was Biµ;ned .
I t w&s vot e d to 'petition the County Commissioners foro t. he clo sing
of College Road p~ovided th ere is no ob j ection on th e part or t he

Water Department.
supe1~intendent :reported that the Town of Sudbury .des ired to pui~- -

chase the Packat •d truc k. The Superintenden t was inst ructed to notify
Mr. Noys e that the Town was a.bout to purchase fi re u pp ar•u tu s and it
mi gh t be possible to get more out of a trade in than it wou ld to

t:STJ>.Sl2cc>"!l
·r.>t'5Co,-.·'n..iv A 1-'C~
MIDDLESEX, ss .
. . •.
At a mee ting ·of . th e CountyC~mmissioners for . the . Coun ty of Mid .dlesex, .
,,. at.",,.......
. . .........
CJ"embri dge
................ . ,.................
................. -··, ·1n sa1
.·..d·•·c oun
· . t y,; on tl1e fi .rs t 'f uesc
. 1ay .
._.-.·..
. . ..·..e - .
o L ..........[W1,.....................:........., m the year
, .J,.·. r . ' ' -~ :
of our Lo rd.. one thousand

'
.nine
• . .· • . . • . • ., ·• · .. .
' . . . . ' '
\, hundred ·and ........t hi .r .t.y.:-r.

t.w.o::.............:...:.....,..........
, to wit, by adjourI?,m.ent
,,. ~ ~~p~t~i~i
.~';;;1;i~:~ :tti#i.:••··
:;:::;;
'i£t~~i;
•
. · . On .the foregoing pe .titic;m , Ord~rE:.d{ ~at , t he :-~herif: f o_fs,aiq ·~,9.;u~:ty;·_c5fi - ..i:i.{s.:Dep\tty : :· · .. ·.
,(. O • • , •• , :, • ' ~;: _,."{ :;,,:c•~~,;.';-,;;:
" " ""!°°;
.. "'•'(,"' ,..
" , •;,o ;"":'._
••._ "t / ,,~,:~~•::r~
4
•-:• \_:/?F..•
.. --:_;
~o. _.•:::••,1 ('':~• .,: , '
~eo'< / : •• J• • •' < ~ ' •
~~~ , .,~ . :t i~.{:~i~f;_:;

~~~~-~~:·to all .person~ .ap_f_-corp~~a~i◊-~.s..:!ritere.sted ..tHe!e_in,;<
"m~f~~i-~1
. ·i;,o~i~fri
.~t?-
.~ir.s.. .·...·
1\;·__.·. . :-':·,
•\ " ,
~U) )h ~.~\.~for the p.u1~p
;i·.~:" .•
·o~~: ~f_\iiewiq.gifie.
' • '
'·j;f.e'µtise.i and.·
' • • ~ • • :, • • 1 • • • • • •
.i:ie~~
_;gJ'h~
\par.t~e$
.-'
~£
fn:~P.-.~
t\--i;.-.:
~ ), , ,•
.....
:..-..
", '- I ~•.~• • .-~ ,~ , •. •..1, I {" _ _. '\ •
.~..~...R9.9m
...§.~J~~:g:t~<?.n . ..:::,~.g~ ...;l;~~:,.~.•::9..~~§91t4..:l ~::I.
~~~-g_
.:.
9:9.~~JY-...
.:f~tf.t.~:~~&.'
~%,~~:!·-;...-·i.
.::~unc ~..:.at.~
...29......1.9.r52. ..~.t.hi
\~iL.Of. }{i.~.¢.i
':.;,
i.~:j~};::t.¢.~ ~.::....:\:::':\}:/t~)'{):
.§.~99~ . ·j·f.(··/i::·:·
.,.,.,.,., ,,. ,.., •• ,. • • • • • •• u •• • • .. • •••• •• • •• • • • •• - •• ..... . , ,.,., , ,.,,,,,, , , •o •• • • • • • • • • ••• • • • • ••••• ••• •,• • ••";• • •• •••"•• '•-' • •••• .. ; •••• • • ••••••• • • • • •• • • •,.• •• • ••••• • • • • •• • • • • • • •• • • ••""'''''' '' ' ' ' •
":-,·t '•·:. ·_
.-,·:··•>,\i:/
;0,y,;:s.e.r~Wii.
;ihe Cl { ·, .:-:~· :_>
-~,·~i
~ · ' .·. ··.· · '•· ' ··· · · · · · - ··
:\ (t? ·'.\:(~•,_:/ '·1:t~\·;.~/:.~.1~f~t.~
..-::.}t_f:•,,,,._..~~~
."i•·'~
·~'·'.·
~ff~~\':'c;·•,;;:;?,•~~:, . . .::;':'J:\· , ~,,:,· • ~'.;',·. /S: ·:. ·."
·. ..•~a~1/~ ;~opy of ·said petitio~·~~dofth1$~rcii~ :-:C)ti.;J11 .,:'firii1rntk
1l\t'i-eiS~bef¥rei[ra ~~ iew/· .
.·:·::;~cfbrp~~Ushing 'the .,sain~)n .~ q~n.QPi-
t.h~.......:<.,•..-,·., -~,_Hf!~ ·~a.#.,.·1
.:.,
.;;\:>
.,-,::....~:
....... :...i..:.............
....
·.a
·~'.; ..,.. _.. ·--n~~p~p~i: print~d · ~~·.~..-:....~ :G.9.~~.9,*-g :\...:.:..:·.~
·:.~.- :.~.<:::
:.:~:.:.~:::
.~~'.·~eek /~~', the last
.....~~:""·- pu·biic;tio~ to be sevendays at ieas t b~£o~e· sa i~l view, and ; lso by posting the sa.me·i n
·two public places in the s~id ..........'~.9.~ ................of. ...............Q9~~9.~!?.-
.:L......................
......................
-......·
seven days before :said view; an1 thathe ·m.ake return of his do~~gs hereirr;to ·..~:~~P
Commi'.sio0~ers, at th.e time and pl<:

)·;:/(;;:,\·.,·.
~:
::;;;?~~t;
,·i./
;,;i
~~~ J1"A~,
. ';-'::s·!r/,
~)1~}:
.4.~:r·:,
·>f ·.- --
.~
,.:··::.
·-: ...
.
.................········•···..····:··"......, ...., .,....... / ....
:~······;: ...··············•:-'•·...:..:..... ·• -
.
,-.
.
~:P: :
.._
:: :
CONCORD _0002993
,,.
,.
COMMONWEAL'IH
OF MASSACHUSETTS-
Middl _esex, ss
.: ....
TO THE COU!\J""TY
COMMISSIONERS FOR THE COUNTY
OF MIDDµ!SEX ·
. BESPEOTFULLY.-~pre·
- ·sent Oscar E. B·eckvold., . : ·,.-
...·.:t¥i(~,·.Lett/~d
;i,iw~rd},
Shaelian; . thaf tll~Y are theduly
. :.':·
:·' ,:el _ected and':/a6ti~l/t~ad.·:06$.nJ
:_
~S:-
iori:e,r-~
\o_f 0
the Town . of Concord
. '" 'h '·in tlie Count-y at'~ ·r :~·said, '· :ath·,t:~,;}~:~r:ii :tjf .t .he
2 public .. wa.ys.
therein; that Estabrook Road, so - called, in said Town of

Concord, is a public way, and that common convenience and
i q•~'.1$
ri~<>6s~ity 4requ1reth~
\J~\'< •t,~l ,r,,,,,
·•· ,, , , .
in a · condition reasonably _sat~ ,-:a .~d ;c:9j];J~.n.:i;·e.4 _f .-f:O.r>
a point on said _.
:&s.~abio,0¥,:,-- e~tranc~
Rtj-~~s,f.a'.r.i~f:l
____ to R. Emerson .
. . . ' . :_~ ::·~~..-~/~:
---} ·,_t-.--::, ~{. •i-_:·-~
.,..'--"':
"' .
dri vev,ay, as ind icated by : ·a>d~il:l hole in rock in · said way,
and shown on the plan hereto .annexed (which said point is
: .· . ·" ,i ' ·• ·.
2;344.05 f:eet _from the middle _.or the, traveled _;VfaY of .:._
Ba~s ,Hill _·,.
Ro~d .,'_ at its · junction . with said Estal:>:t•op~ _If6ad°}, to . -the boundary
·
line : :between the . Town
.:qr:-
·c·oA~iti
.,:J; i\k e...Town ~f Carli 'sle, ·.on
·.: . . ... ·,J- -.·.;·.-:-~
....
;-,)~.-•,:·~·-_.•. -; . ~=···•
•.. ·: ·-~-::
-.-,···' .. - : •, . -.,
said
. :_.
Estabro-ok-
. . .
".c'
Roa.d:; .that
.
_.,. .
said . way from said
.
:point at. the . .
en- ' ' '
-· . . , .1 •• ••
...,. :·_.
:.t~an~eot said R. Emerson driir.eway, _ha~ f .or a long ·period · c:~:a.s·ed
to be in general public use; that there . are -no resid,ence:f served
. . / j
by _ that porti9n of ·said way sought to be discontinued as •~ .-•pu.bl:ici

way; and that it wo~ld ·be . an inordi -nate a ·nd unreas~nablf :expense
upon the sa{d ·Tqwn _of Conc.0rd. tq keep _said ' way in a :O~~
'
dStiori:.>::;,
..• .·.·.. . • '• . : ~
CONCORD _0002994
-~-#;tiff ttf T ·- . ·,·c W7 az r-
J - ·"' .
... ' . ,r -
.·.
I .
'.·reasonably
-- . ~
safe end · convenient f or , travel. ·.·.
WHEREFORE
- the said -.R_
oad Commi~sioners · h "ereby ::pray_
··~:::
th at thei'c"ounty.
c~~i~sio~e r s· adjud'iciat .({·that said w~y · ~ha l l
. . . - .. ' ·- :.
' '•
. \ .
here af't er be a · private way, and : that 'th e ··Town . o~ .Ooncor ·d
shall no longer be ~?und to kee ·p :·-the :-same 1Ii repair,
.
upon .·
- ... - .... ,..
oonditiq i'~.;·s~i?- · ~◊~::•:\;:t:v:e(- suf'1'1M .ent

·n th~t .-·.-et~ notice ·to warn .
'.-. , ·-··-.-·_:~
-~~~~-··
-~ · · --~:'.~~
\~·-
·>r:~-::~.\;~\~}l
.. ·:. ~:-:·•.::! _·:(=
. . :' .\: .• - -- •. · •• • - ·.. · .· ·- : • •
..the·?p"4,ptio-_ 8;§
{~{*S,= ~J $ijJ e:r~!J~--tl;i~:f$op; __.b)"·.th~ ' ~osting o _f _adequa~e
t%i:,·1,~1;~;
;j;1::n:6:l!f
:~~
::~ ··~{~1
•·~fa~ tiI:f;ft.®i
f~l;~~ tes .·.wi ~h
RespectfU.l ly submitted
. . .
,
jj(;_;.,_.·-)w-
,t·'•1~W~~?itt~R
i~·'/;\;~ ..~:.......
- . .:>
,.::::·-
-{\i.-'
. . , -"l . · .
:. ;\ : ::·._
; ·· . ,r .. · .· . . ;:} ' ; _,:
• ~ : •: .• t • • . ,'.o .-~·•• : •. .• '

. ·-.. .
. i. ' .
,. : ' .._,.'. .
CONCORD _0002995
MIDDLESEX, ss.
✓ At
a meeting of the County Commissioners for the County of Middlesex,
holden.at ...................
Oamb.r.idge. ..........................., within anµ for said County,
on the first Tuesday of ...............J\m~ .......... ..................................
.........
, in the year
of our Lord one thousand · nin e hundred and thirty -................ t.w.a.,........
......
The Road Commissioners of the To wn of Concord I . .
in said County, by ...thei:r. ...petition to said Commissioners-among other matters-pray

that a portion or Estabrook Road, in said Concord, be di s continued
as a public way, and thereafter be a private way ,
as will more fully appear, reference being had to .tbe petition filed of r ecor d in the ·case.
The petition was presented to the County Commiss .ioners at their meeting holden at
..'....C.~.mln~,;1,.~g~ ., within and for said . County, on the first Tuesday of.........J.@.e...........
............. . ,
A.D. 1932 , when and where notice was ordered given to all persons nnd corporations
interested therein ·of the ti me and place when and where _said Comm issioners woul d
meet for the purpose of vie-.,ving the premises and hearing the parties as by their ord er
of notice .on file and of record will more fully appear .
And at the time of said vi ew and hearing,

no person interested a pp earin g to object to the di sc ontinuance of
a portion of said highway as a public way, said Commissioners
found that common· convenience and necessity no lon e:;er require
such way to be maintained in a condi t ion reasonably safe and
convenient for travel, and adjudiqated that said way shall
hereafter be a pr1vate way, and thence said petition has been
cont_inued to this time.
And now the said Coinmissio~ers make ........final .........return 0£ the ir proceedings in
the premises, as follows : said Commissioners having given noti ce as the law directs,
· met a.t ..,.........the ....T.ovm...Ha.11 .......:..................... ..in said ............C.o,n9.o.;r..d
........... ................
:.........
.............,
on the .....t .w.e .n.t:y.~ninth ..................
...day of........;....J:u.ne...... ......:......................
..., in the year nineteen
hundred and .....thir.ty .,-.:two..................., when and where the parties appeared, to wit, the
petitioneis by ............H......R......Bygr.av.e., ...A:t;;J~Qr. .n.~.Y.,.~.P.P....E..lm~~....L.. ....J..9..§.l,iJl , .....$.µp_i;•
...
.·.
aa<}~~~~~;i~~~~
.~~.~~~b.o ..:~~;
.~.~.e;.,:.~.~ ~.a.~.;d.°.t..~~
.~.1~e.9.t.
..............
. ......
.,....
The premises having been examined,.and the parties fully heard, said Commissioners
CONCORD _0002996
in accordance with said petition determine that common
convenience and necessity no longer require the way
described L~ said petition to be maintained in a con-
dition reasonably safe and convenient for tra~el , and
adjudicate that said way shall hereafter be a private
way, and that the town shall no lon (;er be b ound to keep
the same in repair o
Tl:1is discont _inuij.nce extends from a point on
said Estabrook Road at the entrance to R . Emerson drive -

way, as indicated by a drill hole in the rock in · said
way , and shown on the plan annexed to the original
petition (which said point is about 2,344 . 05 feet from
the mi ddle of the traveled w~y of Barnes Hill Road , at
its junction with said Esta.brool{ Road), and the discon - \
tinuance is to extend from said d1"ill hole to the boundary I

line b e tween the Town of' Concord and the Town ·or Carlisl~ , j
I
·on said Estabrook.
\
And said Comntis s ion e rs further provide that
in accor d s.nee with Ch apter 289 of the Acts of 1924 this

ju~ction shall tak e effect provided that sufficient
notices to warn the public against entering on said way
are posted where said road enters upon or unites with
-··,.
the existing public way at said Emerron driveway , and
also at the town line between Carlisle and Concord .
IN WITNESSWHEREOF,WE, the said County
Commissioners , have hereunto set our hands this ninth
CO NCO RD_0002997
' • • :: • ♦- • - • • •
r.
~
I
day of July
ni n e h undred
,
in the year
and thirty
of our Lord one thousand
- tno . L
I
I
I
CO NCORD_ 000299 8
a>
a>
a>
N
0
0
~I
a:::
0
C . 1752 ·· u
i,; .
z
0
J The Rond Commissioners of tho Town u
of Con cord , Petr~ . , th at a por-
... ti on of Estabrook Road, in said
Concord, b6 discontinu ed as
a public way, and th ereaft er
be a private ~ay.
FIIML i\i:TURN
~-V7 J. ~,?-'z.
-~ !
·,
' .
·· ·~··
4
Anthony Vannozzi
1 VOL. 1
2 PAGES 1 - 215
3 EXHIBITS 1 - 28
4 COMMONWEALTH OF MASSACHUSETTS
5 Middlesex, ss. Land Court
6 Civil Action No. 17 MISC 000605-HPS

7 ---------------------------------------
TOWN OF CONCORD, )
8 Plaintiff )
v. )
9 NEIL E. RASMUSSEN, ANNA W. RASMUSSEN, )
BROOKS S. READ, SUSANNAH KAY, RUSSELL )
10 ROBB, III, LESLEE ROBB, AND THOMAS )
WRAY FALWELL, TRUSTEES OF THE PIPPIN )
11 TREE LAND TRUST, PRESIDENT AND )
FELLOWS OF HARVARD COLLEGE, JOHN K. )
12 BAKER, TRUSTEE OF THE NIELSEN REALTY )
TRUST, AND NINA I.M. NEILSEN, TRUSTEE )
13 OF THE BAKER REALTY TRUST, )
Defendants )
14 ---------------------------------------
15 DEPOSITION OF ANTHONY R. VANNOZZI

16 Tuesday, January 28, 2019
17 9:38 a.m. - 5:14 p.m.
18 Hemenway & Barnes
19 75 State Street
20 Boston, Massachusetts
21
22 *********
23
24 Reporter: Lauren M. Mitchell, CSR, RPR, CRR
Jones & Fuller Reporting

617-451-8900 603-669-7922
Town of Concord v. Anthony Vannozzi
Rasmussen, et al. January 28, 2020
Page 46 Page 48
1 Q. And is that consistent with the Figure A 1 A. I don't recall specifically. There may have
2 drawing that you have on Page 1 of your plan? 2 been other plans that he did that I have looked at.
3 A. Yes. 3 None are specifically coming to mind here.
4 Q. And that is the location you've defined as 4 Q. Now, from your site visits, you're familiar
5 the area of interest, is that correct? 5 with the Rasmussen driveway, are you not?
6 MS. ALLISON: Objection as to form. 6 A. Yes.
7 A. That is correct. 7 Q. Okay. And looking at Exhibit No. 2, is it
8 Q. Now, going back to Exhibit No. 3, which you 8 your view or your opinion that the Rasmussen
9 have in front of you, the third page of that 9 driveway is in the same location as the driveway
10 exhibit, which is Concord 0000731, do you see that? 10 shown as the R. Emerson driveway on the plan?
11 A. Yes. 11 A. I don't know that for sure. I don't have an
12 Q. The final paragraph of that, could you read 12 overlay of this survey. I didn't do a field survey
13 that into the record, please? 13 to see how the driveway relates to the monument
14 A. "Wherefore the said Road Commissioners 14 shown on this plan. I think it's in the general
15 hereby pray that the County Commissioners adjudicate 15 location, but I don't --
16 that said way shall hereafter be a private way, and 16 Q. But you were out at the site?
17 that the Town of Concord shall no longer be bound to 17 A. Yes.
18 keep the same in repair, upon condition that the 18 Q. And did you observe either of the drill
19 said Town give sufficient notice to warn the public 19 holes in the rocks when you were out there?
20 against entering thereon by the posting of adequate 20 A. No. I will say I didn't look for them
21 notice or notices where such way enters upon or 21 either.
22 unites with an existing public way." 22 Q. Okay. And was there a reason you didn't
23 Q. And then the next page of that same exhibit, 23 look?
24 which is Concord 0732, reflects the determination of 24 A. I wasn't doing a survey.
Page 47 Page 49
1 the commissioners, and down, a little beyond halfway 1 Q. Well, you were looking to determine whether
2 down on that page, is it fair to say that those 2 or not a certain area of interest was public or
3 commissioners adjudicated that such way shall 3 private, were you not?
4 hereafter be a private way? 4 A. Yes.
5 A. Where -- I'm on 732. 5 Q. And the description of that area of interest
6 Q. Yes. 0732, the paragraph that's in the 6 begins at a drill hole in a rock as shown on
7 middle. 7 Exhibit 2, does it not?
8 MS. ALLISON: Objection as to form. 8 MS. ALLISON: Objection as to form.
9 A. I believe that's what they're saying. 9 A. Yes.
10 Q. Okay. Now, Mr. Emerson -- who is the 10 Q. Looking, again, staying with Exhibit No. 2
11 surveyor for Exhibit No. 2, correct? 11 for just a minute more, your most recent -- strike
12 A. Surveyed by Raymond Emerson, yes. 12 that.
13 Q. -- he was also the owner of certain of the 13 In the Town's most recent submission on
14 land that's shown on Exhibit No. 2? 14 expert interrogatories, it indicates that your
15 A. It's owned by an R. Emerson. I believe 15 responses have been revised somewhat. And one of
16 that's the case. 16 the things that is referred to in those most recent
17 Q. And did you know from your historical 17 responses is a home or a house belonging to a
18 research that R. Emerson was Raymond Emerson, and 18 Benjamin Clark.
19 that he was a surveyor? 19 Do you recall that name?
20 A. It says it was surveyed by him. It doesn't 20 A. Yes.
21 say he was a surveyor. I believe it's the same 21 Q. With regard to Exhibit No. 2, can you locate
22 person. 22 the Benjamin Clark home on this plan?
23 Q. Okay. And is it fair to say that you 23 MS. ALLISON: Objection as to form.
24 reviewed other plans that Mr. Emerson prepared? 24 A. I want to look at one of the other exhibits
Min-U-Script® Jones & Fuller Reporting (12) Pages 46 - 49

617-451-8900 603-669-7922
Page 86 Page 88
1 Q. Would you agree with me -- and, first of 1 starts at 50 Acre Road?

2 all, let me go back and say, or ask you, it's fair 2 A. Yes.
3 to say that the 20 score consisted of two parts, the 3 Q. And proceeds in an east/northeast general
4 part that was individually set off to individual 4 direction?
5 proprietors and then a sheeps common that was held 5 A. Generally.
6 in common by the proprietors as tenants in common, 6 Q. Okay. And I'm calling your attention also
7 is that correct? 7 to your Exhibit 10B.
8 A. It depends on when in time you're talking 8 Bateman's Pond is also located on this
9 about, and that may be -- 9 schematic that you've done, is that fair to say?
10 Q. Fair enough. I'm talking about 1697, at the 10 A. Yes. As a label for about where it is.
11 time of the 1697 division. 11 Q. Okay. And is that consistent with
12 A. In 1697, my understanding is that the 20 12 Exhibit 5A that I showed you a moment ago?
13 score, whatever it was, was held by a group of 13 A. No. Because if you see that the 10th share
14 proprietors in common ownership, tenants in common. 14 isn't south of Bateman's Pond. I believe it goes up
15 And then in 1697, they struck a line and drew shares 15 northerly.
16 to place parcels of that into individual ownership, 16 So, it would be actually east of
17 and that some parcel, some of the 20 score remained 17 Bateman's Pond, not south of Bateman's Pond. And
18 in common ownership generally south of that line. 18 same thing, as we move northeast, some of these
19 And there's some indication that part or all of it 19 other parcels I would characterize as being east of
20 was used for some sheep pasture. 20 Bateman's Pond, not necessarily south of Bateman's
21 Q. So, looking again at Exhibit 5A, the line 21 Pond. That's why this doesn't look like that.
22 that you just described, south of which was the 22 Q. It's not exactly the same, but would you
23 sheep common, was generally a west-to-east line 23 agree that in general terms, it follows the general
24 described in the 20 score division, is that true? 24 outline of 5A?
Page 87 Page 89
1 A. I'd like to look at one of my exhibits that 1 MS. ALLISON: Objection as to form.
2 is my sketch of the 20 score, which I think is 2 A. I'd say the definition -- I'd characterize
3 either Exhibit -- excuse me, not exhibit -- Appendix 3 the relationship between the parcels in accordance
4 E or F. 4 with 10B, not 5A. If I were doing 5A, I would have
5 MS. ARSLANIAN: Appendix D. 5 yellowed it differently.
6 A. I think I have D in front of me. 6 Q. Can you tell me what precisely was intended
7 Q. Oh, are you sure it's not Figure 9 that I 7 to be depicted in Exhibit 10B?
8 just handed you? 8 A. Precisely? What 10B is intended to show is
9 A. I'm positive. That's part of it. That's 9 taking the words of the description of the shares of
10 part of it. 10 the division line and the shares of the lots that
11 MS. ALLISON: The witness would like to 11 were drawn for the 20 score and showing their
12 see the larger one. 12 schematic relationships, north, south, east, west.
13 A. They were intended to be seen as big. 13 And there's also a couple of other
14 (Marked, Exhibit 10B, enlarged version 14 parcels that are called out in that description, in
15 of 10A.) 15 those descriptions of the 20 score, either the line
16 A. The reason I wanted to look at 10B is 16 or the shares refers to -- I'm seeing two here that
17 because you characterized generally east/west. 17 are coming to mind, Ebenezer Hartwell's lot and
18 There are a number of calls, some of which are west, 18 Mr. Winters' 20 acres and then the piece just below
19 some of which north, some are northeast, and some 19 it. Those parcels were cut out of the 20 score and
20 are east. 20 put into private hands prior to 1697. There were a
21 So, these connections generally reflect 21 number of parcels in the common area that predated
22 the orientation, the general orientation of north, 22 this.
23 south, east, and west. 23 So, when they cut out the shares, the 20
24 Q. And is it fair to say that the description 24 that they cut out, they had to work around those

617-451-8900 603-669-7922
Page 122 Page 124
1 A. Yes. 1 public's rights in those ways. So, they didn't

2 Q. Look at the very top of the page. 2 exclude non-proprietors from the use of the ways if
3 A. Yes. 3 they were using them legally up to and through that
4 MS. ALLISON: You can look at the rest 4 time.
5 of the document, if you need to. 5 Q. But you would agree with me that the purpose
6 Q. Yes, please do. 6 as stated in Exhibit 7, Page 0003549, is for the use
7 Now, I believe that looking at my copy, 7 and conveniency of the proprietors, is that correct?
8 which is the same as yours, of Exhibit 7, beginning 8 MS. ALLISON: Objection as to form.
9 on Concord Page 0003548, at the very bottom of that 9 A. The declaration of that as a way was to make
10 page, it starts out -- and just tell me if I'm 10 sure that it was clear to the proprietors that they
11 reading this correctly -- "The committee did further 11 would have rights in that way.
12 appointment highways as follows." 12 Q. Now, you mentioned that, in your opinion,
13 Do you see that? 13 the third of these ways was, is located within the
14 A. Yes. 14 Estabrook Road area of interest, is that correct?
15 Q. And the use, "And for the use and 15 A. Yes.
16 conveniency of the proprietors," do you see that? 16 Q. And looking at, again, perhaps going back to
17 A. Yes. 17 your figure, Figures 4 and 5 on Page 7 of your
18 Q. And is it your testimony that proprietors' 18 report, in which location using either figure do you
19 ways are public ways? 19 place the third of the proprietors' roads from
20 MS. ALLISON: Objection as to form and 20 the 1697 division?
21 to the extent it calls for a legal conclusion. 21 A. I need to look at -- I want to see my other
22 A. I believe that proprietors' ways, the 22 exhibits to see if I have a little more -- as far as
23 proprietors' ways predated, the concept of the 23 where it is north and south, I need to look at --
24 proprietors' ways predated what we think of the 24 Q. Well, let me ask you before you go looking
Page 123 Page 125
1 modern concept of a public way, and so that as towns 1 for something else, with regard to either one of
2 developed their form of governance, that many times 2 those figures, are you able to place the approximate
3 the proprietors' way were construed or considered as 3 location of the third road laid out in the 1697
4 public ways. 4 division?
5 Q. Considered by whom? 5 A. Yes. I'm looking at Figure 6. Figure 6
6 A. The Town. 6 shows --
7 Q. It's fair to say that the word proprietor, 7 Q. Excuse me. No, I asked with respect to
8 or one meaning of the word proprietor is owner, is 8 Figure 4 and Figure 5.
9 that correct? 9 MS. ALLISON: Objection as to form.
10 A. Yeah. 10 A. So, where is the way on Figure --
11 Q. Okay. And so, when the proprietors laid out 11 Q. Either four or five. Excuse me.
12 highways for the use and convenience of owners, 12 A. Okay. In order to provide that specificity,
13 would that not suggest to you that the ways were 13 cross-referencing six to five and four, the lines
14 private and not public? 14 shown on six, I can tell you which ones those are on
15 MS. ALLISON: Objection as to form and 15 five, so that it can place it -- I mean, it's such a
16 to the extent it calls for a legal conclusion. 16 small map, my finger is bigger than the area.
17 A. Owners but maybe not exclusively. 17 So, I don't know how you want me to -- I
18 Q. I don't understand what you mean by but not 18 can point it out on five, but I don't know how to
19 exclusively. 19 describe it.
20 A. That the proprietors mention was to make it 20 Q. Well, can you describe it on five? For
21 clear that those ways would inure to the benefit of 21 example, the words 1763 county layout are located to
22 the proprietors, but when those ways were laid out 22 the right of the red line that you've indicated is
23 over existing ways that existed, physical ways, that 23 the area of interest.
24 they were not precluding the public, you know, the 24 A. So, you see the word O in county --

617-451-8900 603-669-7922
Page 166 Page 168
1 information, but certainly the base map is one with 1 they were reserving it, it was the grantors.
2 information of the type that he's familiar with. 2 Q. So, I'm confused because who are you saying
3 A. I don't know what the scale of this map is. 3 reserved the two rod way toward Ephraim Brown's lot
4 Q. Okay. Let's move on. 4 and Thomas Brown's lot that appears to bisect the
5 On Page 48, you describe the Harris deed 5 Harris parcel?
6 as a piece of additional significant evidence 6 A. The grantors, the proprietors. The grantors
7 supporting the consultant's professional opinions. 7 of this deed --
8 First of all, which opinion does the 8 Q. Where does it say in Exhibit 13 there's a
9 Harris deed support? 9 way reserved?
10 A. Where are you? 10 A. Okay. So, it's not -- there being -- there
11 Q. I'm looking at your heading on Page 48. 11 being a two rod way being reserved -- being a two
12 A. Oh, yes. 12 rod way through the premises leading to Ephraim
13 Q. Which of your opinions does the Harris deed 13 Brown's lot and Thomas Brown's lot where it is now
14 support? 14 occupied. They do not use the word reserve.
15 A. It shows a way two rods wide running between 15 Q. So, suggesting that the road was there
16 John Hunt, running between John Hunt and the two rod 16 in 1730, correct, already, at the time of this
17 way to Bateman's that runs in this generally 17 Harris deed?
18 north/south. And it is a two rod way that was 18 A. Yes. There was a way there in 1730.
19 reserved, it's reserved here, and it runs toward 19 Q. And we looked a moment ago at 5A. Actually,
20 Ephraim Brown and Thomas Brown, which we know are 20 let's look for a moment at four.
21 along Estabrook Road, northerly the line of that 21 Looking at Exhibit 4 and again 5A, do
22 lot. 22 you have any -- strike that.
23 So, it's showing us that they reserved a 23 You testified that the road that was
24 two rod road across this piece, which is southerly 24 reserved in the 1697 20 score division was located
Page 167 Page 169
1 of, just southerly of, this line here would be the 1 roughly between the R in CR, and somewhere west of
2 southerly line, the division line of the 20 score. 2 the Morraine boulder field as shown on Exhibit 4,
3 Q. I'm sorry. This southerly line where? 3 correct?
4 A. The line, the southerly line of Jones and 4 A. Yes.
5 Flagg, the northerly line of the Harris piece, okay, 5 Q. And you also testified that the CR was, or
6 coincides with the division line in 1697 of the 20 6 the R in CR was one of the corners of the 17th share
7 score. And we know that there's a two rod road, the 7 of that division?
8 third way, described in 1697 is on Estabrook Road, 8 A. Yes.
9 and that's 17 shares. 9 Q. So, looking at the Harris deed in Exhibit 4,
10 So, the 17th share sits right here. 10 where do you place the Harris deed with respect to
11 This is right below it. So, it's showing us a two 11 Exhibit 4?
12 rod way reserved across this piece to match the same 12 A. It would sit -- its northerly boundary, at
13 sort of reservation that was made here. And all 13 least in that area of the 17th share, would be in
14 these roads all refer to Brown, Ephraim and Tom, 14 that vicinity of that stone wall from the R running
15 which are along Estabrook Road north of that 15 east toward the E in Esker. And then the two rod
16 elevation. 16 way for Ephraim Brown's lot and Thomas Brown's shown
17 Q. So, first of all, again, you keep using the 17 on Figure 40 would lay over Estabrook Road. And
18 word they, they, they. 18 then it would extend east until it got to the way
19 Are you always referring to the 19 described there -- excuse me -- west. It would go
20 proprietors? 20 east until it hits John Hunt's land, and it would go
21 A. In this case, the proprietors and the 21 south until it hit a four rod road.
22 grantors. You know, these are the words of the 22 Q. So, are you familiar with the location of
23 grantors. 23 the Brown, the two Browns, Ephraim Brown and Thomas
24 So, when I say they were saying this, 24 Brown?

617-451-8900 603-669-7922
5
Kristen Heitert
1 VOL. 1
2 PAGES 1 - 170
3 EXHIBITS 1 - 5

7 ---------------------------------------
TOWN OF CONCORD, )
8 Plaintiff )
v. )
Defendants )
14 ---------------------------------------
15
16 DEPOSITION OF KRISTEN B. HEITERT
17 Wednesday, March 4, 2019
18 10:10 a.m. - 4:10 p.m.
19 Hemenway & Barnes, LLP

20 75 State Street
21 Boston, Massachusetts
22
23
Jones & Fuller Reporting

617-451-8900 603-669-7922
Town of Concord v. Kristen Heitert
Rasmussen, et al. March 4, 2020
Page 18 Page 20
1 Q. Okay. So, again, about the second half of 1 Massachusetts?

2 that bolded portion in the upper left-hand corner of 2 A. I do not.
3 Page 6, you state that Estabrook Road was a primary 3 Q. Have you ever offered an opinion previously
4 public route through the woods, connecting Carlisle 4 on whether a road was private or public?
5 and Concord town centers. 5 A. I have not.
6 Do you see that? 6 Q. I'm going to go back for a moment and just
7 A. Yes. 7 look at, or ask some questions again about the scope
8 Q. Again, I'm going to ask you, when you say it 8 of what you were looking at in doing your research.
9 was a public route, what -- can you define for me 9 I'm going to show you what has
10 what you mean by public route? 10 previously been marked as Vannozzi Exhibit No. 4.
11 A. That anyone who chose to use that road would 11 (Witness handed Vannozzi Exhibit 4.)
12 be able to use that road and not be impeded in their 12 Q. And I would note that the marking at the
13 access to that road. 13 bottom of Vannozzi Exhibit 4 I believe was done by
14 Q. And how do you know, first of all, that 14 Mr. Vannozzi, but looking at this exhibit, Vannozzi
15 there was no impediment to access along that road? 15 Exhibit No. 4, can you define for me the area that
16 A. During my historical research, I found no 16 was the focus of your research, or can you point out
17 evidence of anyone being impeded in their access to 17 for me the area that was the focus of your research?
18 that road. 18 A. The focus of my research was essentially
19 Q. And what evidence would you expect to find 19 from the, where the four rod way marker is on the
20 if they were impeded, if there were such an 20 map --
21 impediment? 21 Q. Yes.
22 A. From a historical research perspective, I 22 A. -- to what is now the Carlisle/Concord town
23 would have expected to see some sort of reference to 23 line.
24 locked gates, perhaps someone remarking that 24 Q. Okay. And on your field, your two site
Page 19 Page 21
1 someone, one of the adjacent, someone from one of 1 visits -- can you tell me, actually give me the date
2 the adjacent parcels came out and told them they 2 of the second of those site visits?
3 were not allowed on that road. 3 A. January -- is that correct? I believe it
4 Q. Your research spans from the 17th century 4 was early, late December, early January 2019. I
5 through the 20th century, is that correct? 5 don't remember the specific date off the top of my
6 A. Yes. 6 head -- 2019, yes.
7 Q. And that's a fairly long period of time? 7 Q. Okay. So, either late December of 2019 or
8 A. Yes. It's a long period of time. 8 January of 2020?
9 Q. And in terms of narratives, am I correct in 9 A. Oh, sorry. No. It was -- wait. It was
10 saying that until the late or the mid to late 19th 10 November or December 2019. It was somewhere around
11 century, there are no reports or no reported 11 the holiday season. I can't remember the specific
12 conversations or observations in your report? 12 date.
13 MS. ALLISON: Objection as to form. 13 Q. And can you describe for me with reference
14 Q. Do you understand the question, because I 14 to Exhibit 4 where you walked or the areas that you
15 can repeat it? 15 examined on your site visits?
16 A. There are no conversations in my report. 16 A. Both site visits, first and second?
17 Q. The conversations that you do report are 17 Q. Yes. And you don't have to distinguish
18 taken from Thoreau's journal to a large extent, is 18 between them. I'm just interested in knowing which
19 that correct? 19 of the areas shown on Exhibit 4 you actually looked
20 A. Many of the comments are taken from 20 at.
21 Thoreau's journal. 21 A. I walked the entire length of the road from
22 Q. Now, going back again, do you have any 22 four rod way to the Concord/Carlisle town line.
23 knowledge as to the legal requirements for how a 23 We also took several of the side trails
24 road becomes public in the Commonwealth of 24 off of Estabrook Road. And we looked at Mink Pond

617-451-8900 603-669-7922
6
Town of Concord by Christopher Whelan
1 VOL. 1
2 PAGES 1 - 226
3 EXHIBITS 1 - 31

7 ---------------------------------------
TOWN OF CONCORD, )
8 Plaintiff )
v. )
Defendants )
14 ---------------------------------------
15 RULE 30(B)(6) DEPOSITION OF TOWN OF CONCORD,

16 BY AND THROUGH CHRISTOPHER WHELAN,
17 AND IN HIS INDIVIDUAL CAPACITY
18 Wednesday, July 17, 2019
19 10:27 a.m. - 4:40 p.m.

20 Concord Town Hall
21 22 Monument Square
22 Concord, Massachusetts
23 *********

Town of Concord v. Town of Concord by Christopher Whelan
Rasmussen, et al. July 17, 2019
Page 54 Page 56
1 Q. And what were those documents? 1 understanding of what a layout is?

2 A. Let me see. Some of the interrogatories, 2 A. It's a, often a drawing on a map with a
3 and e-mails, newspaper stories, those types of 3 physical description of width and length, perhaps
4 things. 4 some landmarks, relative to a road.
5 Q. Got it. 5 Q. And if you wanted to know if a road or a
6 Any older town records? 6 trail in the Town of Concord had been laid out, how
7 A. I saw the 1932 determination by the County 7 would you go about finding out that information?
8 Commissioners, those several documents related to 8 A. I would start with the Public Works. The
9 that. 9 Public Works Department tries to keep a
10 Q. Got it. 10 comprehensive list of actively used roads in town,
11 A dividing line in my mind, at least, 11 and roads approved by the Planning Board.
12 having looked at a lot of documents in case, is some 12 Q. Did you, in fact, consult with Public Works
13 are typewritten, and some aren't, some predate the 13 before bringing this lawsuit?
14 typewriter. 14 A. Yes.
15 Did you look at any handwritten town 15 Q. What did Public Works tell you about whether
16 documents? 16 a layout existed for Estabrook Trail?
17 A. Not recently, no. 17 A. They indicated they were unable to locate a
18 Q. Okay. I'm going to go into a 30(b)(6) topic 18 layout in their files.
19 now, which involves steps taken by the Town 19 Q. And are you aware that Chapter 82 of the
20 preceding this litigation, and the first topic I'd 20 General Laws requires layouts to be on file with the
21 like to discuss is the layout, if any, of Estabrook 21 town clerk?
22 Trail. 22 A. I read that recently.
23 So, Mr. Whelan -- 23 Q. Before filing this lawsuit, did you
24 MS. ALLISON: To be clear, that's not a 24 personally -- pardon me. Strike that.
Page 55 Page 57
1 topic on which Mr. Whelan is designated. 1 Before filing this lawsuit, did any
2 MR. MOORE: I'm not sure that that's the 2 official acting on behalf of the Town correspond
3 case because the topic of this -- so, I'm reading 3 with the town clerk to determine whether there had,
4 now from this document, No. 16, "The diligence, if 4 in fact, been a layout of Estabrook Trail?
5 any, undertaken by the Town before filing this 5 MS. ALLISON: Objection as to form.
6 action against private citizens in the town, 6 A. I'm not aware of any written correspondence
7 including, without limitation, the factual grounds 7 to the town clerk. An intra-organization would be
8 known to the Town before initiating this lawsuit 8 more informal. It would more likely be a
9 that would support the following allegations." 9 conversation.
10 Going down to Part B, "Estabrook Road 10 Q. Got it.
11 was once a public way in Concord that extended from 11 MR. MOORE: Lauren, may I mark that as
12 Liberty Street to the Concord town line." 12 an exhibit, the number of which I have again
13 MS. ALLISON: I'm clarifying, you're not 13 forgotten? My apologies.
14 referring to Topics 1 through 3, which specifically 14 THE REPORTER: No. 8.
15 refer to layouts discovered following the 15 (Marked, Exhibit 8, e-mail string.)
16 commencement of the litigation? 16 Q. Mr. Whelan, I'll direct your attention to
17 MR. MOORE: That's right. The purpose 17 the bottom of this document, which appears to be the
18 of this is the Town has alleged that Estabrook Trail 18 first e-mail in the chain. It's written by an
19 has been laid out. And I want to understand what 19 individual named Anita Tekle.
20 the Town knew before making that allegation. 20 A. Tek-lee.
21 Q. So, Mr. Whelan, I don't charge you with this 21 Q. Tek-lee.
22 knowledge. There are a handful of ways to create a 22 Who is that?
23 public way. One of them is a layout. 23 A. Anita Tekle was the former town clerk for
24 Can you express for me your 24 the Town of Concord.

617-451-8900 603-669-7922
Page 58 Page 60
1 Q. Got it. 1 those places?

2 And she's writing to somebody named 2 A. As well as the Light Department, a request
3 Conni Manoli. 3 was made that the Light Department make a search.
4 Who is that? 4 And no layout was found in any of those locations.
5 A. I believe it's an employee of the Concord 5 Q. Got it.
6 public library. 6 A. Could I just comment that the timing on
7 Q. And can you read the text of this e-mail 7 those searches, it was a progression. I think it
8 below "Conni," into the record? 8 was expected that it would be found in Public Works
9 A. That starts, "On Tuesday"? 9 engineering.
10 Q. It should be the last paragraph on the first 10 When that didn't happen, they went to
11 page of this document. 11 the town clerk. Then when that didn't happen, they
12 A. "Conni, when you have a moment, can you look 12 went to the light plant and the Building Department,
13 at the plan/street layout tubes and see if there is 13 I think it was.
14 a tube for Estabrook Road? They are in 14 So, that occurred over time. And when
15 quasi-alphabetical order in the back of the vault 15 that occurred relative to the filing of the
16 room. If you have one, I'll come over tomorrow and 16 complaint, I'm not exactly clear on.
17 pick it up. I have a couple that I can return at 17 Q. Fair to say that most of those inquiries
18 the same time. Thanks." 18 predated the filing of the lawsuit?
19 Q. Then there's an exchange between Anita and 19 A. Yes.
20 Conni about the timing of Conni's availability to do 20 Q. So, you walked through the first place you
21 this. 21 might look is at Public Works.
22 And the substance of Conni's response is 22 Why would that be the first place?
23 on the top third of the page. It begins, "No 23 A. They're responsible for the roads. When the
24 Estabrook." 24 Planning Department lays out a street for a
Page 59 Page 61
1 Can you read that into the record? 1 subdivision, the engineers are actively involved in
2 A. "No Estabrook Road among the street layouts. 2 the process from beginning to end.
3 C." 3 Q. And then maybe if Public Works doesn't have
4 Q. Was that information conveyed to you at any 4 it, the town clerk might?
5 time? 5 A. Correct.
6 A. Yes. 6 Q. And on down the line?
7 Q. So that the Town knew of this e-mail 7 A. Yes.
8 exchange before filing suit in this case? 8 Q. And in none of those places was a layout
9 A. Not of the -- I'm not familiar with this 9 found?
10 e-mail exchange. It was more, I was informed that a 10 A. Correct.
11 search was done of records, older records as well as 11 Q. So, this gets a little in the weeds, and you
12 current records, and no layout was found. 12 may or may not know this. I'll represent it to you,
13 Q. Got it. 13 another way to create a public way is dedication of
14 So, we talked about Public Works. We've 14 the way by the landowners and acceptance by the Town
15 talked now about the town clerk. 15 prior to 1846.
16 Is there anywhere else that the Town 16 What, if anything, did the Town do to
17 looked to determine whether there was a layout of 17 determine whether Estabrook Trail had been dedicated
18 Estabrook Trail? 18 to public use and accepted by the Town?
19 A. I'll just clarify, Public Works includes the 19 MS. ALLISON: Objection as to form.
20 engineering division of Public Works as well as the 20 A. I'm not aware. I don't recall having a
21 director's office, and the planning office and/or 21 discussion on that approach or that process, that
22 building inspector who is within the Planning 22 the road may have been dedicated by the abutters or
23 Department. 23 owners to the Town. I didn't have a discussion
24 Q. And none of, no layout was found in any of 24 whether that was a possibility. The concern always

617-451-8900 603-669-7922
Page 62 Page 64
1 related to the layout. 1 beginning of Estabrook Trail is registered land?

2 Q. How might the Town go about finding out 2 A. I was not aware of that.
3 whether a way had been dedicated and accepted? 3 Q. And we'll set aside for the moment whether
4 MS. ALLISON: Objection as to form. 4 part of the trail is, in fact, registered, because I
5 A. I think it would be a similar process. We'd 5 think the attorneys will have different views about
6 ask those departments I referenced earlier to search 6 that, but let me represent to you that part of the
7 their files to see if there was any record of such 7 land in that area is, in fact, registered.
8 action. 8 Has the Town reviewed the registration
9 Q. And assuming, for a moment, which is an 9 plans?
10 assumption you don't need to adopt, that acceptance 10 MS. ALLISON: Objection as to form.
11 would be done by a meeting vote, did the Town 11 A. I'm not familiar with that. I'm not in a
12 undertake a review of town meeting minutes to 12 position to comment on whether -- the town engineer
13 determine whether an acceptance of Estabrook Trail 13 is somebody who I would have expected, you know,
14 had occurred? 14 would have done that, and the town planner, or the
15 MS. ALLISON: Objection as to form. 15 planning director, would have been the two people
16 A. I recall speaking with the town clerk and 16 that I would expect to be knowledgeable, if anyone
17 asking if there was any records of town meeting 17 is, on that subject.
18 action relative to Estabrook Road, and the naming of 18 Q. Got it.
19 the road was identified but no layout or acceptance 19 So, we're going to introduce some Land
20 of dedication of land by private property owners was 20 Court plans. They are big. So, we have two copies.
21 identified to me. 21 MR. MOORE: If you wouldn't mind sharing
22 Q. Now, I'm not a Concordian. This seems to be 22 them.
23 a pretty cool town. 23 MS. ALLISON: No problem.
24 How far back do town meeting records go? 24 (Marked, Exhibit 9, Land Court Plan
Page 63 Page 65
1 A. 1700s, anyway, I think, to the best of my 1 No. 10163C.)

2 knowledge. Very early -- 2 MR. MOORE: I will note for the record
3 Q. And, so, before -- 3 that this is Land Court Plan No. 10163C.
4 A. 1600s. 4 I'll let Mr. Nislick chime in to make
5 Q. Pardon me, Mr. Whelan. Continue. 5 sure that I've described that correctly.
6 A. More like 1600s, I think. 6 MR. NISLICK: Yes.
7 Q. Before initiating this lawsuit, the Town 7 Q. Mr. Whelan, I'd like to direct your
8 undertook a review of those minutes to determine 8 attention to the bottom left corner here. There's a
9 whether Estabrook Trail had been dedicated and 9 sentence that begins, "There is." I'd like you to
10 accepted? 10 read that into the record, please.
11 MS. ALLISON: Objection as to form. 11 A. "There is no layout of Estabrook Road."
12 A. I would have relied on the town clerk to 12 Q. Was the Town aware of this document filed in
13 make that -- I can't testify personally that the 13 the Land Court before filing suit in this action?
14 search back to 1635 was done, but my understanding 14 MS. ALLISON: Objection as to form.
15 is that, you know, an exhaustive search was done to 15 A. Not to my knowledge.
16 see if there was any such action taken by town 16 Q. And just to briefly go on an island away
17 meeting. 17 from 30(b)(6), just asking you as Chris Whelan.
18 Q. Are you aware that part of the land 18 Have you seen this document before?
19 underlying the -- pardon me. Strike that. 19 A. No, I have not.
20 Are you aware that part of the land in 20 Q. Back to the 30(b)(6) topics. I'm going to
21 this area is registered land? 21 move to another Land Court plan from the same Land
22 MS. ALLISON: Objection as to form to 22 Court register.
23 "in this area." 23 A. Could I just back up a second, please?
24 Q. Are you aware that part of the land near the 24 What is this a plan of?

617-451-8900 603-669-7922
Page 70 Page 72
1 MR. MOORE: Back on the record, please. 1 MR. MOORE: That's right.
2 I'd like to mark this as Exhibit 11. 2 MS. ALLISON: -- on Topic 16?
3 (Marked, Exhibit 11, complaint.) 3 MR. MOORE: I am doing precisely that.
4 Q. Mr. Whelan, I'll represent to you that this 4 Q. And, Mr. Whelan, your answer was?
5 is the complaint in this action. 5 A. I do not.
6 Did you review this document before it 6 MS. ALLISON: Could you repeat the
7 was filed? 7 question?
8 A. I did. 8 Q. So -- pardon me. Strike that, Lauren.
9 Q. I direct your attention to Paragraph 18 of 9 MS. ALLISON: It wasn't clear if you
10 this document. 10 were asking in the context of the 30(b)(6). I just
11 Can you read the first sentence of that 11 want to hear that again.
12 paragraph into the record? 12 Q. Does the Town have any independent knowledge
13 A. "Historic records and secondary sources of 13 of the use of Estabrook Trail in the 17th, 18th,
14 Concord history establish centuries-long public use 14 19th -- and 19th centuries, other than that
15 of Estabrook Road. The information contained in 15 reflected in the historic records and secondary
16 those records is described below." 16 sources referenced in Paragraph 18?
17 Q. So, among the secondary sources of Concord 17 MS. ALLISON: You're talking about at
18 history referenced -- pardon me. Strike that. 18 the time of the complaint?
19 What are the secondary sources of 19 MR. MOORE: Correct.
20 Concord history referenced here? 20 A. At the time of the complaint, I'm not aware
21 A. I believe there are references to the public 21 of them.
22 use of the roadway. 22 Q. So, what the Town knew about how Estabrook
23 Q. Sure. But who is making those references? 23 Trail was used, if it was used at all during those
24 MS. ALLISON: Objection as to form. 24 time periods, is reflected in the historic records
Page 71 Page 73
1 A. I think we've provided information to you in 1 and secondary sources?

2 the -- about references that have been made in the 2 A. Yes.
3 historical record. 3 Q. And among those sources was William Ellery
4 Q. Okay. So, why don't we do this. I'll say 4 Channing, for example?
5 what I understand to have been provided, and you say 5 A. Yes.
6 if that's one of the secondary sources. 6 Q. Prominent figure around here?
7 So, there are certain journals from 7 A. Yes.
8 Henry David Thoreau? 8 MR. MOORE: Mark this as Exhibit 12.
9 A. Correct. 9 (Marked, Exhibit 12, handwritten
10 Q. That would be one of the secondary sources? 10 document, with attachments.)
11 A. Yes. 11 MR. MOORE: So, I'll note for the record
12 Q. And William Ellery Channing? 12 that this document was produced to us as one
13 A. Yes. 13 document. All of these things were together.
14 Q. And a handful of other prominent residents 14 Candidly, I'm not sure what this is.
15 of Concord from that time period? 15 Q. Mr. Whelan, if you know, I'd welcome you
16 A. Yes. 16 filling us in on that.
17 Q. Okay. Beyond what you may have read in 17 A. I don't have any detailed knowledge of this.
18 those sources and the public records also referenced 18 It appears to be a document prepared by the League
19 in this paragraph, do you have any knowledge of how 19 of Women Voters in 1994, or a summary thereof.
20 Estabrook Trail was used in the 17th, 18th, and 19th 20 Q. At least some of it appears to be, and some
21 centuries? 21 of it does not, I think, but I won't make you adopt
22 MS. ALLISON: Objection as to form. 22 that.
23 Again, are you asking him in his role as 23 Instead what I'll ask you to do is turn
24 a 30(b)(6) witness at the time of the complaint -- 24 to the page that has a Bates number at the bottom.

617-451-8900 603-669-7922
Page 142 Page 144
1 Q. On Estabrook Trail specifically? 1 way. One of those ways is prescriptive rights.

2 A. I think so. Yeah, yeah, I think so. 2 That's obviously a legal term, but my
3 Q. And on other lands in town as well? 3 question is whether you have an understanding of
4 A. Yes. Very definitely. 4 what that term means?
5 Q. Got it. 5 A. I have an understanding of what it means,
6 And to the extent you know -- and you 6 yes.
7 may not -- who else are some of the members of 7 Q. And what is that understanding?
8 Concord Unleashed? 8 A. It would be that the public has acquired
9 A. I would recognize the names if I saw them, 9 rights by the use of repeatedly, openly, and
10 but they don't come to mind. 10 notoriously of private property, such that they
11 Q. So, the top of this sign says, "Welcome," 11 would be allowed under the law to continue that use.
12 right? 12 Q. All right. So, I'm going to focus on
13 A. Yes. 13 actions by the Town on the trail before 1932.
14 Q. So, that couldn't have been the part of the 14 A. Okay.
15 sign that was concerning to the Town? 15 Q. Just one question --
16 A. Correct. 16 A. The unpaved section?
17 Q. What was concerning? 17 Q. The unpaved section of Estabrook Trail.
18 MS. ALLISON: Objection. Asked and 18 One question before returning
19 answered. 19 to 30(b)(6), asking just you as Chris Whelan.
20 You can answer. 20 Do you have any personal knowledge of
21 A. "You are entering on private lands," which, 21 how the Town used the trail, if at all, before 1932?
22 again, this is my view that, again, it's like 22 A. I do not.
23 posting a sign that says private with public access. 23 Q. And returning to the 30(b)(6) hat, if you
24 There's no parenthetical comment there. It's just 24 will, are you aware of any town official or employee
Page 143 Page 145
1 this is private, and then, secondly, the statement 1 who has personal knowledge about how the Town used
2 the owners are granting permission to use the trail, 2 the trail, if at all, before 1932?
3 and that was not my understanding historically 3 A. I do not know.
4 before this issue became an issue, and then as I 4 MS. ALLISON: Can we make sure it's
5 became more informed about the situation out there, 5 clear on the record?
6 I was more firm in my understanding that the public 6 Was the answer you're not aware, or you
7 has some rights, and they haven't been granted by 7 don't know if there is or not?
8 the owners. The public holds those rights. 8 THE WITNESS: I am not aware of any town
9 Q. So, is it now the Town's understanding that 9 official that has knowledge of activities prior
10 the trail itself was privately owned? 10 to 1932.
11 A. It is now. 11 Q. The Town has made certain allegations of
12 Q. But that there is some latent public access 12 uses -- pardon me. Strike that.
13 rights? 13 The Town has described certain uses of
14 MS. ALLISON: Objection as to form. 14 the trail before 1932.
15 A. That's -- yes. 15 Is it fair to say those descriptions are
16 Q. Okay. All right. I'm going to move on to 16 based on historical records?
17 another topic here. Let me take one moment to 17 A. Yes.
18 center myself. 18 Q. Have you reviewed those historical records?
19 So, I'll be asking you these questions 19 A. Yes.
20 in your capacity as the Town's 30(b)(6) witness. 20 Q. Some portion of them? All of them?
21 And at least initially, they're going to 21 A. Some portion of those records.
22 relate to actions taken by the Town before 1932. 22 Q. Got it.
23 So, we've talked today about a handful 23 Some of the records, at least according
24 of ways that you could establish public rights to a 24 to the Town, demonstrate maintenance of the trail

617-451-8900 603-669-7922
Page 146 Page 148
1 before 1932? 1 A. Yes.

2 A. Yes. 2 Q. You don't have any independent knowledge of
3 Q. Is that fair to say? 3 that?
4 A. I agree. 4 A. Correct.
5 Q. And have you reviewed those records? 5 Q. And nobody else with the Town does either?
6 A. I have seen some records of gravel and other 6 A. Not to my knowledge.
7 physical repair to the road that occurred in the 7 Q. Okay. There are a number of records there,
8 late 1800s, I believe it is, into the 1920s. 8 and we're just going to walk through a handful of
9 Q. And other than what is stated on those 9 them to get a flavor of those records.
10 records, does the Town have any additional 10 MR. MOORE: Off the record.
11 information about the maintenance performed on the 11 (Discussion off the record.)
12 trail? 12 (Marked, Exhibit 21, two-sided
13 MS. ALLISON: Objection as to form. 13 photograph.)
14 Other than what is stated where? 14 Q. Mr. Whelan, we were talking earlier about a
15 MR. MOORE: On the public maintenance 15 dividing line between town documents being in
16 records that we've discussed. 16 handwriting and in typewriting. This appears to
17 A. And were provided. 17 fall into the former category.
18 Q. And that the Town has identified? 18 Have you seen this document before?
19 A. Yes. 19 A. I don't recall seeing it, no.
20 MS. ALLISON: In its interrogatories? 20 Q. But you believe that somebody with the Town
21 MR. MOORE: Correct. 21 reviewed this document?
22 MS. ALLISON: I just want to be 22 A. I do.
23 absolutely clear. 23 Q. Otherwise, it would not be listed in the
24 Q. Let's start that again. 24 interrogatories?
Page 147 Page 149
1 A. Do we have any other records other than what 1 A. Correct.

2 we presented in our interrogatories, or discussed or 2 Q. Got it.
3 identified in the interrogatories, no, not to my 3 Are you able to read the content of
4 knowledge. 4 this? I'll direct you to the other side which has
5 Q. Okay. Let's turn to some of those 5 sort of more of the substance here.
6 interrogatories. We're going to go this time to 6 A. It seems like I can read most of it.
7 Exhibit 3, which is the Town's third supplemental 7 There's a word or two that I would have difficulty
8 response to Neil Rasmussen's first set of 8 with.
9 interrogatories. 9 Q. So, if you would not mind attempting to read
10 I'm going to direct you to Page 7, the 10 at least the first paragraph here, I'd appreciate
11 first full paragraph here. 11 it. And do not hesitate to speak up if there's
12 A. Got it. 12 something that you can't deduce from it.
13 Q. It states that the Town appropriated money 13 A. Starting at the top of the page, "The
14 and incurred expenses relating to the upkeep of the 14 committee appointed" --
15 road, further demonstrating its public status. 15 Q. You didn't think this would be part of
16 "Specifically, the available records show that money 16 retirement.
17 for maintenance and upkeep was appropriated in" -- 17 A. Correct.
18 and then there's a series of years listed. 18 "The committee appropriated" --
19 So, that answer -- again, this answer 19 appointed -- wow, that's hard -- sorry. Let me just
20 was given by you, correct? 20 go through this.
21 A. Yes. 21 Q. Take whatever time you need. I've not given
22 Q. And that answer is based on the historical 22 you an easy task.
23 records that are referenced elsewhere in this 23 MR. MOORE: Lauren, can we go off the
24 interrogatory? 24 record?

617-451-8900 603-669-7922
Page 158 Page 160
1 MS. ALLISON: Objection as to form. 1 Q. But for gravelling, we may not know?
2 You're referring to the currently 2 A. Correct.
3 unpaved trail? 3 Q. All right. We're going to return to
4 MR. MOORE: Currently unpaved trail. I 4 Exhibit No. 3, the responses to Mr. Rasmussen's
5 have no knowledge of what it looked like at whatever 5 interrogatories.
6 date this is, 1960. 6 I'm going to direct your attention to
7 A. I agree. That location is still within what 7 the middle of Page 10 here, and in particular, to
8 is now the unpaved section. 8 the second paragraph.
9 Q. So, it's fair to say that at least this 9 There's a portion that says, "The Town
10 maintenance record does not relate to actions taken 10 appointed Town Surveyors in 1746 to inspect and keep
11 on the trail itself? 11 in good repair the Town's highways and bridges."
12 MS. ALLISON: Objection as to form. 12 And then it goes into some detail which
13 A. Based on my engineering, you would be right. 13 we'll get to in a moment, but I want to talk to you
14 Q. All right. Let's go through one more 14 about this concept of town surveyors.
15 maintenance record. 15 What were town surveyors?
16 (Marked, Exhibit 24, construction 16 A. I guess I know only what's provided here,
17 record, dated 1931.) 17 that they were appointed, persons appointed to
18 Q. So, Mr. Whelan, Exhibit 24 is 18 inspect and keep in good repair the town's highways
19 Concord 0005705. This also is mentioned in the 19 and bridges.
20 interrogatory response that we've been discussing. 20 Q. So, this answer is probably based on
21 Can you share with me your understanding 21 information that somebody else gathered and provided
22 of what this document is? 22 to you?
23 A. It appears it's labeled as a construction 23 A. Yes.
24 record, noting that in the year 1931, 3740 feet of 24 Q. Do you know who that would be?
Page 159 Page 161
1 gravel was installed on -- from Liberty Street to 1 A. Either the Public Works Department or the
2 Mr. Emerson's house. 2 town clerk perhaps from the historical record, or
3 Q. Okay. So, the R. Emerson, you understand 3 from the library staff that have custody of the
4 that to be a reference to Mr. Emerson's house? 4 historical records.
5 A. Yes. 5 Q. So, other than the description of what it
6 Q. Okay. And that too was before the, what is 6 says town surveyors here did, you don't have any
7 now the unpaved portion of the trail? 7 other knowledge?
8 MS. ALLISON: Objection as to form. 8 A. I don't.
9 A. It would end in the vicinity of the 9 Q. Got it.
10 termination. It's right in that area. I don't know 10 The good news is we get to skip ahead a
11 if it would be short of the now unpaved area or past 11 few questions. All right.
12 it. It ends in that area. 12 We're going to transition, actually,
13 Q. But right around that area? 13 only to the next paragraph for a moment.
14 A. Yes, yes. 14 This continues to talk about the Town's
15 Q. And as to these maintenance records and the 15 purported responsibility for certain ways. And then
16 other maintenance records that we've discussed, 16 it says, the phrase, "Notwithstanding loss of
17 again, you don't have an independent understanding 17 relevant records."
18 of whether the actions here actually took place, do 18 What, if anything, do you know about the
19 you? 19 loss of records that might be relevant to town
20 A. I don't. 20 maintenance of Estabrook Trail?
21 Q. So, for some things, if I understand you 21 A. I don't have any specific information about
22 correctly, we could actually go and look if there's 22 the loss of records.
23 still a water main? 23 Q. So, you don't know whether there was an
24 A. Yes. 24 event, for example, that caused the destruction of

617-451-8900 603-669-7922
Page 162 Page 164
1 certain records? 1 Q. Do you believe that poles, utility poles

2 A. I don't. 2 were installed along the entire length of the
3 Q. Like a fire or a flood or something? 3 unpaved path?
4 A. I'm not aware. 4 A. Do I believe they were -- I don't have any
5 Q. Or it could just be that a lot of time has 5 knowledge.
6 passed, and records may have existed at one point 6 Q. So, you don't know one way or the other?
7 but don't exist now? 7 A. I don't.
8 A. Correct. 8 Q. Could have happened?
9 Q. You're not aware of any particular records 9 A. Correct.
10 that are missing? 10 Q. May not have happened?
11 A. Correct. 11 A. Could also be that the New England Telephone
12 Q. All right. On to the topic of telephone 12 Company requested and received approval to install
13 poles. I'm going to direct your attention, 13 the poles but didn't do that. So, I don't really
14 Mr. Whelan, to Page 7, the first full paragraph on 14 know.
15 this page begins about halfway down. And the fourth 15 Q. You don't know one way or the other?
16 sentence begins, "In 1899." 16 A. Correct.
17 Can you read that sentence for me? 17 Q. Got it.
18 A. "In 1889, the Town voted to formally name 18 I'm going to direct your attention to
19 Estabrook Road. In 1890, the annual Town Report 19 the Town's response to Ms. Kay's first set of
20 referred to the mounting costs of maintenance of the 20 interrogatories, which is Exhibit No. 4, and go to,
21 Road. In 1889, the Board of Selectmen granted a 21 on the bottom of Page 6, top of Page 7. There's a
22 petition from the New England Telephone and 22 bullet point that continues from the bottom of six
23 Telegraph Company to install utility poles along the 23 to the top of seven. And I'd ask that you read that
24 entire length of the Road between the Carlisle line 24 bullet point into the record, please.
Page 163 Page 165
1 and Liberty Street and reserving space on the poles 1 A. I'm sorry. The last bullet point that
2 for Town wires, demonstrating the Town's authority 2 begins on six that goes to seven?
3 to control the Road." 3 Q. Correct. Yes.
4 Q. So, I'm going to ask you to stop there. 4 A. "In 1889, the Board of Selectmen granted a
5 Do you know whether the installation of 5 petition from the New England Telephone and
6 these utility poles occurred? 6 Telegraph Company to install utility poles along the
7 A. It's my understanding that they did. I have 7 entire length of the Road between the Carlisle town
8 seen myself several poles that are on the unpaved 8 line and Liberty Street, reserving space on the
9 portion of the trail toward the paved section. 9 poles for Town wires."
10 Q. All right. So, let's take that step by 10 Q. Is this talking about the same thing that we
11 step. 11 were just talking about?
12 You understand that some poles were 12 A. I would say yes.
13 installed? 13 Q. Now, elsewhere in this same document, I'm
14 A. Yes. 14 going to direct you to the answer to Interrogatory
15 Q. What's the basis of that understanding? 15 No. 3, and in particular, the bottom of Page 2.
16 A. I've seen poles, there are poles there now. 16 The third bullet point from the bottom
17 Q. You've seen those poles, I see. 17 also references utility poles. Can you read that
18 And there's a phrase here that says, 18 into the record?
19 "Along the entire length of the Road." 19 A. "Several utility poles with Concord Light
20 And I'll represent to you the road here, 20 Plant wires were installed on the currently paved
21 the Town has been using the term road, we've been 21 road and currently unpaved portions" -- "currently
22 using the term trail. 22 paved and currently unpaved portions of Estabrook
23 This is referencing the unpaved part? 23 Road."
24 A. Thank you. 24 Q. And do you have any knowledge of this

617-451-8900 603-669-7922
Page 166 Page 168
1 installation beyond what is stated here? 1 just asking you as Chris Whelan.
2 A. Again, other than my personal observation 2 We've discussed already this topic, at
3 that there are some utility poles on the unpaved 3 least briefly, but you're aware that Estabrook Trail
4 portion, no. 4 was discontinued in 1932?
5 Q. And other than whatever may be indicated in 5 A. Yes.
6 documents that the Town has referenced? 6 Q. And you've reviewed records associated with
7 A. Correct. 7 that discontinuance?
8 Q. Do you have any -- 8 A. Yes, I have.
9 MS. ALLISON: Answer verbally. 9 Q. And you understand those records to be
10 A. Correct. 10 public records?
11 Q. Do you have any reason to dispute the 11 A. Yes.
12 characterization that these poles continue only for 12 (Marked, Exhibit 25, Board of Road
13 a couple hundred yards on to Estabrook Trail? 13 Commissioners document, dated April 13, 1932.)
14 MS. ALLISON: Objection as to form. 14 Q. Mr. Whelan, have you seen this document
15 Currently? 15 before?
16 MR. MOORE: Currently. 16 A. Yes.
17 A. I am not. 17 Q. And did I understand your testimony earlier
18 Q. Are you aware of utility poles having been 18 correctly that you may have reviewed it in
19 installed and de-installed on Estabrook Trail? 19 preparation for today?
20 A. I am not. 20 A. Yes.
21 Q. Or installed and fallen into disrepair at 21 Q. What is this document?
22 some period of time? 22 A. These appear to be the minutes of the Board
23 A. No. 23 of Road Commissioners for the Town of Concord, in
24 Q. Could have happened? 24 April of 1932.
Page 167 Page 169
1 A. Could have happened. 1 Q. I'd like to direct your attention to the

2 Q. May not have happened? 2 second paragraph here. And we're going to go
3 A. I don't have any information. 3 sentence by sentence.
4 Q. All right. We've talked about the 4 I'll ask you to read the first sentence
5 installation potentially of utility poles. We've 5 into the record, and then I may have a few questions
6 talked about town maintenance before 1932. 6 for you about that.
7 Are there any other actions that the 7 A. "Mr. Robert Bygrave appeared before the
8 Town took on Estabrook Trail before 1932 that are at 8 Board representing Raymond Emerson, Stedman Buttrick
9 all relevant to this case? 9 and Russell Robb and requested the Road Commissions
10 MS. ALLISON: Objection as to form. 10 to petition the County Commissioners for the closing
11 A. To my knowledge, just the materials that we 11 of Estabrook Road from a point just northerly of
12 provided in the interrogatories. 12 Raymond Emerson's bungalow to the Carlisle line as a
13 Q. All right. And any documents that might be 13 public way."
14 referenced in those interrogatories? 14 Q. All right. So, let's go through these
15 A. Correct. 15 names.
16 Q. But beyond that, no actions that we've not 16 Raymond Emerson, Stedman Buttrick, and
17 discussed already? 17 Russell Robb, who do you understand those
18 A. That's right. 18 individuals to be?
19 Q. All right. I'm probably -- 19 A. The Select Board, selectmen.
20 MR. MOORE: Lauren, may we go off the 20 Q. All right. Let me represent to you that
21 record for one minute? 21 they are landowners in the area.
22 (Discussion off the record.) 22 A. I see. That makes sense.
23 Q. Mr. Whelan, I'm going to ask you for the 23 Q. Who may have some offspring who are here.
24 next topic to take off your 30(b)(6) hat. This is 24 MR. ROBB: Correct.

617-451-8900 603-669-7922
Page 182 Page 184
1 Q. So, where have you seen the sign? 1 Q. Did the Town -- were you made aware of any
2 A. I think I was provided a copy of this at 2 concerns about this sign being posted on or near the
3 some time in early spring. 3 trail?
4 Q. Sometime before a moment ago? 4 A. I don't recall hearing any concerns about
5 A. Yes. 5 the sign.
6 Q. It's my understanding that this sign was 6 Q. So, if it was posted -- and you don't know
7 posted at the beginning of Estabrook Trail, but it 7 the answer to that, is that correct?
8 seems from your answer that you don't share that 8 A. Correct.
9 understanding? 9 Q. But if it was posted, you did not hear any
10 A. I don't have any recollection of where this 10 concerns about it?
11 was posted. 11 A. Correct.
12 Q. So, it could have been? 12 Q. And you, as town manager, were not concerned
13 A. Yes. 13 about it?
14 Q. But it may not have been, you don't know? 14 A. Correct.
15 A. Right. 15 MS. ALLISON: Objection as to form.
16 Q. If you wouldn't mind taking a moment to 16 Q. Okay. We're going to address
17 review this sign. 17 another 30(b)(6) topic, and this is going to pertain
18 A. Yes, I have reviewed it. 18 to uses post-1932.
19 Q. Okay. So, the bottom here references a 19 So, Mr. Whelan, are you aware that the
20 number of prohibited activities. 20 Town is also claiming that if any public rights were
21 Setting aside any activities relating to 21 extinguished in 1932, they were reestablished
22 dogs or bikes, these prohibited activities look very 22 through some sort of prescriptive use thereafter?
23 similar to the sign we were discussing earlier, is 23 A. I am.
24 that correct? 24 Q. And tell me your understanding of that
Page 183 Page 185
1 A. I agree. 1 claim.
2 Q. And the top part of this sign references 2 A. My understanding is that assuming the road
3 Estabrook Woods. 3 was discontinued in 1932, it is our belief that the
4 Now, what are those? 4 road continued to be used openly and notoriously by
5 That's slightly different than the 5 the public for the common uses that we've discussed.
6 trail, right? 6 Q. So, you used the term the public there. I
7 MS. ALLISON: Objection as to form. 7 want to break that down.
8 A. Yes. 8 Does that include town officials?
9 Q. What are the Estabrook Woods? 9 A. Yes.
10 A. Estabrook Woods is a collection of 10 Q. And it also includes other members of the
11 properties adjacent to Estabrook Road that was 11 public who are not acting on behalf of the Town?
12 referred to by Thoreau. I think Harvard owns 12 A. Correct.
13 about 600 acres, and it totals about 1200 acres or 13 Q. So, John Q. Public, who may be walking on
14 so that are referred to as Estabrook Woods. 14 the trail, if he's done so openly, notoriously,
15 Q. Would you agree with me that the trail is 15 continuously for 20 years, may also have a claim to
16 part of Estabrook Woods but does not comprise the 16 continue to use it?
17 whole of the woods? 17 A. Yes.
18 A. I would. 18 Q. And the Town is asserting that claim as
19 Q. And this references Estabrook Woods as 19 well?
20 mostly private lands. 20 A. Yes.
21 Do you agree with that? 21 Q. So, I'm going to direct -- let's focus first
22 A. I agree that that's what it says. 22 on actions by the Town on the trail after 1932.
23 Q. And do you agree with that, in fact? 23 Do you agree that the Town has not taken
24 A. I do. 24 any action to maintain the unpaved trail since 1932?

617-451-8900 603-669-7922
Page 186 Page 188
1 A. Zero, I don't know if the number would be, 1 And in that paragraph, the Town is
2 amount of hours the Town spent on it would be zero, 2 identifying certain employees, agents, or
3 but it would be minimal at best, and I'm not aware 3 representatives of the Town who engaged in -- and
4 of any specific actions that were taken by town 4 I'll quote -- "corporate action on the currently
5 officials to maintain the trail. 5 unpaved portion of Estabrook Road from 1932 to the
6 Q. Got it. 6 present."
7 Let's go to the Town's third 7 What do you understand the term
8 supplemental response to Mr. Rasmussen's 8 corporate action to mean?
9 interrogatories, which should be Exhibit 3. 9 A. That means action on behalf of the Town as a
10 A. Got it. 10 corporation.
11 Q. Going down to the second full paragraph -- 11 Q. And then there's a short list of people here
12 A. On Page? 12 who purportedly have taken corporate action
13 Q. -- on Page 9. Pardon me. I'm just going to 13 post-1932. So, I'd like to walk through each of
14 read it, and let me know if this continues to be an 14 those individuals.
15 accurate statement of the Town's position. 15 The first one is the animal control
16 "Pursuant to the intent of the 1932 discontinuance, 16 officer, Jennifer Condon?
17 the Town has not performed any paving, grading, 17 A. Yes.
18 clearing, patching, graveling, or other maintenance 18 Q. Do you know her?
19 on the currently unpaved portion of the Road since 19 A. I do.
20 1932." 20 Q. And it seems that she's a town contractor,
21 Is that an accurate statement? 21 basically?
22 A. I have no information to the contrary. 22 A. Correct.
23 Q. So, no reason to quibble with that? 23 Q. And it seems like she's good at her job,
24 A. Correct. 24 nice person?
Page 187 Page 189
1 Q. All right. Aside from maintenance, has the 1 A. Yes.

2 Town, through its officials or employees, engaged in 2 Q. And does the Town continue to claim that she
3 any official conduct on the trail since 1932? 3 used the trail in some manner that constitutes
4 A. Other than -- what was the exclusion? 4 corporate action?
5 Q. Other than maintenance. 5 MS. ALLISON: Objection as to form.
6 A. Well, I recall the coyote incident where the 6 A. It's my understanding that she responded to
7 director of Natural Resources was consulted on how 7 calls and/or complaints. She's the animal control
8 to deal with the coyotes and, I think, posted a sign 8 officer/dog officer. So, she responds to calls and
9 about that. 9 complaints concerning dogs or wildlife, including on
10 Q. And in the course of that incident, that -- 10 the trail.
11 who was that individual? 11 Q. And to the extent I had questions for her as
12 A. Delia Kaye. 12 to what she's done on the trail, do you know
13 Q. And would she have used the trail during 13 anything different than what she would tell me?
14 that time? 14 A. No.
15 A. Yes. 15 Q. The next person here is the director of the
16 Q. And how long of a period of time was the 16 Concord Municipal Light Plant.
17 so-called coyote incident? 17 Who is that individual?
18 A. Matter of a few weeks, I think. 18 A. His name is Dave Wood.
19 Q. Got it. Okay. 19 Q. Okay. And has it been Dave Wood since
20 I'm going to direct your attention to 20 you've been town manager?
21 the Town's response to Ms. Kaye's interrogatories, 21 A. He took over about 10 years ago. He had a
22 which is Exhibit 4, and in particular, to Page 4 of 22 predecessor whose name was Dan Sack.
23 those responses. There's a Response No. 4, there's 23 Q. And do you know what the Concord Municipal
24 a first paragraph. Then there's a second paragraph. 24 Light Plant may have done on the trail?

617-451-8900 603-669-7922
Town of Concord v. Town of Concord by Christopher Whelan - Vol. 2
Rasmussen, et al. August 15, 2019
Page 340 Page 342
1 A. I'm aware that the town clerk keeps records 1 layout of a road called Lime Kiln Road?
2 of public roads. I don't know the manner in which 2 MS. ALLISON: Objection as to
3 she keeps those records. 3 foundation.
4 Q. To the best of your knowledge, if such a 4 A. That we have records of Lime Kiln. I don't
5 book was maintained by the town clerk, has the Town 5 know if we have a layout of Lime Kiln. We have
6 produced any reference that might be contained to 6 records that refer to Lime Kiln.
7 Estabrook Road to us? 7 Q. Now, when you referred, in Paragraph 20, "In
8 MS. ALLISON: Objection as to 8 colonial times, the Road was the most direct route
9 foundation. 9 between Concord Center and Carlisle Center," how do
10 A. A reference? It's my understanding we have 10 you know that?
11 not produced a layout, but there has been, have been 11 MS. ALLISON: Objection as to
12 other documents, I believe. 12 foundation.
13 Q. Now, before we broke for lunch, you made 13 A. It's my understanding that it's from the
14 reference to certain aspects of the complaint being 14 secondary sources that it was the most direct route
15 dicta. 15 to Carlisle.
16 What did you mean by that? 16 Q. Are you aware of the precise route that
17 A. I don't think I used that -- 17 people might have traveled from Concord to Carlisle?
18 MS. ALLISON: Objection as to form. 18 A. I am not.
19 I think that mischaracterizes his 19 Q. So, it may or it may not overlap what we're
20 testimony. We don't have the transcript in front of 20 calling the trail today?
21 us yet, but I didn't hear that. 21 MS. ALLISON: Objection as to form and
22 Q. Okay. So, I guess to the extent that you're 22 foundation.
23 not alleging that anything that you testified 23 A. The most direct route may or may not -- it
24 earlier to concerning the complaint was dicta, I 24 would be my expectation that the road has existed
Page 341 Page 343
1 guess I'd like to ask you about some of the 1 since colonial times.
2 allegations in the complaint concerning Estabrook 2 Whether it was the most direct route to
3 Road's historic significance. 3 Carlisle Center, I don't know.
4 And I'll start with 18 where it says, 4 Q. Do you know who cut down the trees and
5 Historic records and secondary sources of Concord 5 created the path?
6 history establish centuries-long public use of 6 A. I do not.
7 Estabrook Road. 7 Q. Do you know if it was any employee of the
8 MS. ALLISON: Are you on Paragraph 18? 8 Town that cut down the trees and made the path?
9 MR. NISLICK: Paragraph 18. 9 A. I don't know.
10 Q. Are any of those historic records records 10 Q. Now, 21, you talk about, "A portion of
11 that are maintained by the town clerk? 11 Estabrook Woods was granted in 1697 in twenty
12 A. It's my understanding that most of those 12 twenty-acre parcels."
13 ancient records of the town are on deposit at the 13 Do you know where those 20-acre parcels
14 library, at the public library. 14 exist in relation to the trail?
15 Q. But none of the historic records that are 15 MS. ALLISON: Rob, I'm going impose an
16 being referred to here are a record of a layout? 16 objection here.
17 MS. ALLISON: Objection as to form. 17 I've been very patient, but you're
18 A. It's my understanding there is no, there's 18 asking Mr. Whelan about information contained in
19 no record in the town clerk's files that shows a 19 ancient records which we've said over and over again
20 layout specifically of a road named Estabrook Road. 20 in our correspondence prior to this deposition that
21 Q. Do you know if there's a record of a layout 21 this witness, no witness in town has any independent
22 of a road called Lime Kiln Road? 22 knowledge of these events beyond what's in the
23 A. That's my understanding. 23 historic record, which is no surprise since we're
24 Q. So, you understand that the Town has a 24 talking about events that happened over 300 years

617-451-8900 603-669-7922
Page 344 Page 346
1 ago. 1 that it performed maintenance on the road?

2 So, given that we're halfway through, 2 A. Yes.
3 over halfway through the second day of Mr. Whelan's 3 Q. Is the Town relying on the facts stated in
4 deposition, I am going to encourage you not to ask 4 those town reports to support its claim for
5 him about events that happened back in the 17th 5 prescription over Estabrook Road?
6 and 18th centuries which we've said again and again 6 A. Yes.
7 are present only in the historic record. 7 Q. So, I'd like to direct your attention to
8 MR. NISLICK: Okay. So, the Town is not 8 Paragraph 41.
9 relying on these events to establish its 9 A. 41?
10 prescriptive claim? I just want to be clear on 10 Q. 41.
11 that. 11 A. Got it.
12 MS. ALLISON: That is not what I said. 12 Q. Do you see where it says, "The town repaired
13 The Town is relying on historic records 13 and improved the Road in 1890, 1892, 1895, 1896 and
14 to establish its prescriptive claim, as well as its 14 1906"?
15 claim that the road was laid out as a public way 15 A. Yes.
16 prior to its discontinuance. 16 Q. Is the Town relying on the repairs and
17 What I've said is that this witness's 17 improvements it alleges it made in those five years
18 time should not be used to ask him questions about 18 to support the Town's claim for prescription?
19 whether he knows anything beyond what is in the 19 MS. ALLISON: Objection as to form.
20 historic records, because the answer to all of those 20 A. Yes.
21 questions will be no. 21 Q. And did the Town produce to us selected
22 MR. NISLICK: Okay. Well, then I'll 22 pages from the Concord town report in those years
23 fast forward just a little bit to 1889. 23 which would support what's alleged in Paragraph 41?
24 Q. Are you aware of the date or the year in 24 A. I'm sorry. Could you repeat that?
Page 345 Page 347
1 which Estabrook Road was named? 1 Q. Sure.

2 A. I'm aware that the town meeting voted 2 MS. ALLISON: I'll represent to you that
3 in 1889 to name the road Estabrook Road. 3 the Town has produced the maintenance records
4 MS. ALLISON: And, to be clear, Rob, my 4 concerning these repairs.
5 objection would also apply to documents from 1889. 5 MR. NISLICK: Okay. I'd like to please
6 Mr. Whelan, no one in the town has 6 ask Mr. Whelan to turn to Exhibit 22.
7 knowledge beyond what's in the historic record about 7 A. Got it.
8 anything that happened in the 19th century or early 8 Q. And the first page appears to be a Concord
9 in the 19th century, or at any point in the 19th 9 town report where the word 1889 is crossed out, and
10 century, and early in the 20th century. 10 the word 1890 is written in.
11 MR. NISLICK: Okay. 11 Do you see that?
12 Q. Well, Concord produces an annual town 12 A. I do.
13 report, is that correct? 13 Q. Does that --
14 A. Yes. 14 A. Not our customary practice.
15 Q. And do you know when they started preparing 15 Q. Right. Do you have any idea who wrote the
16 that annual town report? 16 word 1890 on it?
17 A. I don't. 17 A. I don't know.
18 Q. Is it correct to say that the Town has 18 Q. But is it safe to say that this is a page
19 produced to us pages from the report in the 19 from the 1890 town report?
20 year 1890? 20 A. Yes.
21 A. Yes. 21 Q. And it's a report of the Road Commissioners?
22 Q. And is it fair to say that Concord has 22 A. Yes.
23 produced to us pages from the town report in several 23 Q. And this is something that was produced to
24 years subsequent to 1890 in which the Town asserts 24 us in support of the Town's claim that it maintained

617-451-8900 603-669-7922
Page 348 Page 350
1 Estabrook Road? 1 Page 82 of the town report.

2 MS. ALLISON: Objection as to 2 Q. So, the report of the Road Commissioners
3 foundation. 3 in 1890 reflected an expenditure of $57 on Estabrook
4 A. Yes. 4 Road, is that fair to say?
5 Q. If you could please turn to what is Bates 5 A. I believe so.
6 stamped as Page 5798, Concord 0005798. 6 Q. Do you know where on Estabrook Road that $57
7 A. Is that still Exhibit 22? 7 was spent?
8 Q. Yes, it is. It's maybe about five or six 8 MS. ALLISON: Objection as to
9 pages in. 9 foundation.
10 MS. ALLISON: My copy of that exhibit 10 A. No.
11 has no Bates numbers on it. 11 Q. But is it safe to say that it could be on
12 THE WITNESS: Same here. 12 the presently-paved portion?
13 MS. ARSLANIAN: What number is it? 13 MS. ALLISON: Objection as to
14 MR. NISLICK: Exhibit 22. 14 foundation.
15 MS. ARSLANIAN: We have a copy with the 15 A. Yes, it could be.
16 Bates. 16 Q. If you could please turn to 5807, it's
17 5790, is that the one you're looking 17 several pages in.
18 for? 18 A. Got it.
19 MR. NISLICK: Yes, it starts with 5790. 19 Q. What do you recognize Page 5808 to be?
20 MS. ALLISON: I'm just -- so, does the 20 A. The report of the Road Commissioners for the
21 original exhibit have Bates numbers on it? Just 21 year 1892.
22 because my marked copy does not have Bates numbers 22 Q. And if you could turn to Bates No. 5809, in
23 on it. I just want to be sure -- 23 the middle of that first paragraph, does that
24 MR. NISLICK: I think your copy has it 24 reflect an expenditure on Estabrook Road of $25?
Page 349 Page 351
1 on the bottom right. The copy Vanessa gave me last 1 A. There it is. Yeah, it does.
2 time has 5790 on it. 2 Q. Do you know where on Estabrook Road that
3 MS. ALLISON: So, the original should 3 expenditure was made?
4 have Bates numbers on it? 4 MS. ALLISON: Objection as to form.
5 MS. ARSLANIAN: Correct. 5 Rob, I have to say, again, if this
6 MS. ALLISON: Sorry, Rob. Would you 6 document doesn't say where on Estabrook Road it was,
7 repeat the page? 7 Mr. Whelan is not going to be able to shed any light
8 MR. NISLICK: Sure. It's Concord 5798. 8 on that.
9 A. Got it. 9 So, I, again, encourage you, if we can
10 Q. And do you recognize Concord 5798 as a 10 move this along, not to ask the witness questions
11 document that the Town produced to us? 11 about historic records which we've already said he
12 A. Yes. 12 has no independent knowledge of, or anyone in the
13 Q. And what do you recognize Concord 5798 to 13 town, no one in the town has independent knowledge
14 be? 14 of besides what is in the historic records.
15 A. It appears to be the report of the Road 15 MR. NISLICK: Okay. Well, I guess is
16 Commissioners for the year 1890, Page 76. 16 the Town willing to strike Paragraph 41 from its
17 Q. And is the Town relying on the content of 17 complaint?
18 this report in support of its argument that it 18 MS. ALLISON: Of course it's not.
19 maintained and improved Estabrook Road in 1890? 19 As I said, we're relying on what's in
20 MS. ALLISON: Rob, would you like him to 20 the historic records. You can make whatever
21 read the entire report, or is there a particular 21 arguments you like about the sufficiency of those
22 provision that you're pointing to? I'm just trying 22 records, but the important point for today is that
23 to speed things along. 23 Mr. Whelan can't tell you anything about what
24 A. I see Estabrook Road, $57 is mentioned on 24 happened to Estabrook Road in 1892 that isn't

617-451-8900 603-669-7922
Page 352 Page 354
1 otherwise addressed in this document. 1 but more major road expenditures on the hundreds of
2 MR. NISLICK: Okay. Well, I think the 2 thousands of dollars level, that sort of thing, yes.
3 problem that I have with the Town's complaint is 3 Q. So, are you aware of whether the Town
4 that when it's convenient for the Town, it conflates 4 produced to us copies of town reports from any other
5 the trail with Estabrook Road generally. And you're 5 years other than what's reflected in Exhibit 22?
6 making allegations concerning repairs and 6 A. I don't believe. I'm not aware of any other
7 maintenance and improvements to Estabrook Road, and 7 submittals.
8 it's not clear to me whether that supports the 8 Q. But if -- is it safe to say that in any
9 Town's prescriptive claim to the trail. 9 given year, if the Town expended money to repair or
10 MS. ALLISON: Well, we'll look forward 10 improve Estabrook Road, that it would have been
11 to addressing that argument in response to a motion 11 reflected in the report of Road Commissioners for
12 for summary judgment perhaps, but today, the witness 12 that year?
13 is here to respond to any facts of which he or the 13 MS. ALLISON: Objection as to
14 Town has knowledge. 14 foundation.
15 And we've said that to the extent a 15 A. Prior to 1932?
16 historic record, that we've relied on historic 16 Q. Yes.
17 record, no member of the town can add anything to 17 A. It appears that -- well, I think the answer
18 what's in the record. That's all that matters for 18 is yes.
19 purposes of Mr. Whelan's testimony today. 19 Q. So, is it safe to say that in 1891, or
20 MR. NISLICK: Is Mr. Whelan willing to 20 in 1893, or in 1894, that if the Town had repaired
21 say that? 21 or improved Estabrook Road, that such expenditure
22 MS. ALLISON: I've just represented that 22 would have been reflected in the town report?
23 the Town, and I've said it in previous 23 MS. ALLISON: Objection as to
24 correspondence, the Town is not offering a witness 24 foundation.
Page 353 Page 355
1 to speak to events that occurred in these ancient 1 A. Well, I don't really -- I think we searched
2 and historic records. We have no knowledge beyond 2 those ancient records, and we provided and utilized
3 what's in the records. 3 only those reports that reflected expenditures on
4 Q. What is your understanding of a 4 Estabrook Road.
5 municipality's obligation to prepare an annual town5 I can't speak to the consistency with
6 report? 6 which the Road Commissioners accurately reported
7 A. It's my understanding that the Select Board 7 their activities.
8 would get fined $25 each if they failed to prepare a
8 Q. So, the Town, it's safe to say, did look at
9 report. 9 -- what was the first year in which the Town
10 Q. So, is it your understanding that there's a 10 reviewed its annual reports in connection with
11 statute in the General Laws that requires the 11 producing documents --
12 selectmen of a town to prepare an annual report? 12 MS. ALLISON: Objection as to
13 A. It is. 13 foundation.
14 Q. And, similarly, or similar to the matter in 14 Q. -- to the Defendants?
15 which expenses on roads, for road upkeep are 15 MS. ALLISON: Objection as to
16 reflected in these ancient town reports, would there
16 foundation.
17 similarly be a reflection of expenditures in an 17 THE WITNESS: Is it okay to answer?
18 annual report that you might see today? 18 MS. ALLISON: If you have any idea.
19 A. Do I understand your question that, would 19 A. I don't know.
20 modern day reports that we might have issued more 20 Q. Is it safe to say that after reviewing
21 recently also provide financial information on 21 annual town reports of the Town of Concord that the
22 expenditures on the town's roadways? 22 Town could not produce a consistent 20-year period
23 Q. Yes. 23 in which the town report reflected repairs or
24 A. Probably not road by road as you see here, 24 improvements or maintenance to Estabrook Road?

617-451-8900 603-669-7922
Page 356 Page 358
1 MS. ALLISON: Objection as to form. And 1 that the Town has produced to us selected pages from
2 the Town's production would speak for itself. 2 the town report which would have reflected
3 A. Correct. There's no record that we are 3 maintenance to Estabrook Road, and to the extent
4 aware of indicating that consistently over a 20-year 4 that we haven't received a report in any of those
5 period, expenditures were made on an annual basis. 5 intervening years, that the report reflects that
6 Q. Do you know when Concord ceased to have a 6 there was no such maintenance?
7 Board of Road Commissioners? 7 MS. ALLISON: Objection as to form; and
8 MS. ALLISON: Objection as to form. 8 to the extent the documents speak for themselves;
9 THE WITNESS: Is it okay to answer? 9 and that Mr. Whelan can't add anything to what those
10 MS. ALLISON: If you -- 10 documents say.
11 A. My understanding is that with the adoption 11 Subject to those objections, answer if
12 of the town charter in 1956, it eliminated all but 12 you can.
13 two elected boards, including the elected Board of 13 MR. MOORE: I don't have any problems
14 Road Commissioners. 14 with the objections, but we're getting deep into
15 Q. So, with regard to Paragraph 42, see where 15 speaking-objection territory.
16 it says, "In 1903, Town Meeting voted to change the 16 MS. ALLISON: I disagree with that.
17 position of the Town's boundary line with Carlisle, 17 We're at a point where Mr. Whelan has been here for
18 and in doing so used Estabrook Road as an anchoring 18 a day and a half. And I don't know how many times
19 landmark"? 19 we've discussed by letters that we are not offering
20 MS. ALLISON: You're referring to 20 a witness that can say anything beyond what's in
21 Exhibit 11? 21 these historic records. And Rob's questions have
22 MR. NISLICK: Yes, I am. I'm sorry. 22 been solely related to these historic records.
23 Q. That paragraph does not allege that the Town 23 So, that's why I'm posing these
24 did anything to Estabrook Road in 1903, correct? 24 objections. And I think it's entirely appropriate,
Page 357 Page 359
1 A. I agree. 1 and we need to move this along.

2 Q. Would you agree that it's merely a reference 2 MR. NISLICK: I don't see really a
3 to Estabrook Road as a landmark? 3 difference between an annual report from 1918 and an
4 A. Reference point, landmark, yes. 4 annual report from 2018.
5 Q. And this may be more of a question for 5 And if the Town is relying on work that
6 Melissa -- 6 it did which is reflected in maybe six or seven
7 MS. ALLISON: I'm not being deposed 7 annual reports in support of a claim of 20 years of
8 but -- 8 continuous prescriptive use, well, I want to know
9 Q. Are you aware with regard to Paragraph 43 9 why there are some years in which nothing's
10 whether the Town produced its 1915 annual report to 10 reflected. I think that's completely, completely
11 the Defendants? 11 within bounds.
12 MS. ALLISON: I can determine that for 12 MS. ALLISON: And Mr. Whelan can testify
13 you, Rob. I don't know off the top of my head. I 13 to questions about what documents the Town relies
14 doubt Mr. Whelan knows that off the top of his head. 14 on.
15 We can let you know. 15 It's the questions in which you're
16 MR. NISLICK: And, similarly, if you 16 asking him about information contained in those
17 have a Bates number for the patches and gravels 17 documents or not contained in those documents that
18 in 1916 and 1917, I'd appreciate that. 18 I'm objecting to because he has no independent
19 MS. ALLISON: Are you referring to a 19 knowledge of that historic information.
20 paragraph in the complaint? 20 MR. NISLICK: And nobody does, is that
21 MR. NISLICK: Paragraph 44. 21 fair to say?
22 MS. ALLISON: Okay. 22 MS. ALLISON: There's no witness in the
23 Q. So, taken collectively from 1890 23 town that does, that's right, given the age of these
24 through 1922, is it accurate that the town report -- 24 records.

617-451-8900 603-669-7922
Page 360 Page 362
1 Q. Well, you testified last month that 1 understanding that the abutters of the road
2 post-1932, the Town had -- when Mr. Moore asked you 2 petitioned the Road Commissioners to act to petition
3 if you would agree that the Town had not taken any 3 the County Commissioners to discontinue the road.
4 action to maintain the unpaved trails since 1932, 4 Q. And do you understand that the dispute today
5 you testified, "Zero, I don't know if the number 5 concerning the discontinuance is a question of
6 would be, amount of hours the Town spent on it would 6 whether the road is entirely private, meaning that
7 be zero, but it would be minimal at best, and I'm 7 the abutters can exclude people, versus whether the
8 not aware of any specific actions that were taken by 8 public has retained rights?
9 town officials to maintain the trail." 9 MS. ALLISON: Objection as to form.
10 So, what you testified to concerning 10 A. My understanding is that there is a dispute
11 post-1932, is it safe to say that you have a similar 11 about whether the public retained rights after
12 basis of knowledge prior to 1932? 12 the 1932 action was taken.
13 MS. ALLISON: Objection as to form. 13 Q. But, as far as you know, the manner in which
14 A. I don't know that I agree with that. 14 the Town's Road Commissioners pursued its petition
15 The action taken in 1932 was to ensure 15 to the County Commissioners was followed correctly?
16 that the Town stopped spending money during The 16 MS. ALLISON: Objection as to form and
17 Depression on maintaining a road that was 17 foundation.
18 infrequently used. 18 A. I am not aware of any flaw in that process.
19 Before that, at least it appears to me 19 Q. Now, are you aware that Jennifer Condon, the
20 from reading the records that the Town felt an 20 animal control officer, gave a deposition in this
21 obligation to spend money to keep the road in 21 case?
22 serviceable condition. 22 A. I was informed of that prior to our last
23 Q. Do you know if any abutting landowner to 23 session of my deposition.
24 Estabrook Road objected to any maintenance that was 24 Q. Have you read her deposition transcript?
Page 361 Page 363
1 performed by the Town prior to 1932? 1 A. I have not.

2 MS. ALLISON: Objection as to 2 Q. Are you aware --
3 foundation. 3 MR. NISLICK: I'd like to mark this as
4 A. I don't have any knowledge or information 4 the next exhibit, please.
5 predating 1932. 5 (Marked, Exhibit 38, deposition
6 Q. Would you know if the Town's maintenance on 6 transcript of Jennifer A. Condon, dated
7 Estabrook Road prior to 1932 was adverse to any 7 March 28, 2019.)
8 abutter to Estabrook Road? 8 Q. So, before I get into this next exhibit, who
9 MS. ALLISON: Objection as to 9 does the animal control officer in the town report
10 foundation, and to the extent that calls for a legal 10 to?
11 conclusion. 11 A. The chief of police.
12 A. And I'm not completely sure what you mean 12 Q. Do you have any supervisory capacity over
13 when you use the term adverse. 13 her?
14 Q. Do you know -- I guess what I'm asking you 14 A. Not directly. I supervise the chief of
15 is, do you know if any of the abutters viewed the 15 police. It's actually under a contract.
16 Town's maintenance as something that was unwelcome? 16 Q. Who is responsible for renewing her
17 MS. ALLISON: Same objections. 17 contract?
18 A. I don't have any information on that. 18 A. The chief handles that.
19 Q. Now, I may know the answer to this, but I 19 Q. Do you have any involvement in that at all?
20 may not, but do you have any independent knowledge 20 A. I'm the contract awarding authority. So, I
21 concerning the manner in which the Town petitioned 21 would sign off on the contract, but, otherwise, no.
22 the County Commissioners to discontinue Estabrook 22 Q. Do you ever communicate with her in
23 Road? 23 connection, or did you ever communicate with her in
24 A. I'm aware what's in the record. It's my 24 connection with your duties as town manager?

617-451-8900 603-669-7922
Page 380 Page 382
1 December 31, 2016, to Select Board from Robb.) 1 allowing public use, and it needs to be reasonably
2 Q. Mr. Whelan, do you recognize this document, 2 controlled so that resources are protected.
3 which is marked as Exhibit 41? 3 Q. Do you know if the Robbs ever revoked their
4 A. Yes, I recall this coming in. 4 allowance of public use to Estabrook Trail?
5 Q. And although it's addressed to the Select 5 MS. ALLISON: Objection as to form.
6 Board, it was a letter that crossed your desk as 6 A. I'm not aware of any such revocation.
7 well? 7 Q. Do you know if the Read/Kays had similarly
8 A. Yes, typically. 8 permitted use to the public over the trail?
9 Q. Had you drafted any kind of response to 9 MS. ALLISON: Objection as to form.
10 Mr. Robb or Mrs. Robb after you had received this 10 A. That's my understanding.
11 letter? 11 Q. Is it also your understanding that the
12 A. No. 12 Rasmussens had allowed public use to Estabrook Trail
13 Q. Was it common, is it common for the Board to 13 as well?
14 not respond to letters of townspeople? 14 MS. ALLISON: Objection as to form.
15 A. Unfortunately, it's not uncommon for both 15 A. Yes.
16 the Board and the town manager to fail to respond in 16 Q. And is it your understanding that any of
17 a reasonable expectation. 17 those parties, whether it's the Rasmussens, the
18 We actually have a policy that town 18 Read/Kays, or the Robbs, ever revoked the
19 staff are supposed to respond within 48 hours. The 19 permission that they had granted to members of the
20 Board doesn't have a policy for itself, but we do 20 public to use the trail?
21 sometimes fail to comply with that. There's nothing 21 MS. ALLISON: Objection as to form.
22 intended by failing to respond other than inertia or 22 A. I am not aware of any revocation of public
23 whatever, and I know that Mr. Robb called us on 23 use.
24 that, and reasonably so. 24 Q. Revocation of any permissive use?
Page 381 Page 383
1 Q. Did you actually have a face-to-face meeting 1 MS. ALLISON: Same objection.
2 with Mr. Robb at some point prior to the litigation? 2 A. Permitted use.
3 A. Yes. 3 MR. NISLICK: I'd like to mark the next
4 Q. And what was the -- if you can recall the 4 exhibit as well.
5 content of that conversation. 5 (Marked, Exhibit 42, letter to the
6 A. I don't recall it. It was a cordial 6 Select Board and Town Manager, dated
7 conversation. I think he mentioned the failure to 7 April 29, 2017.)
8 respond. And I conceded right away that we owed him 8 Q. Mr. Whelan, I show you what's been marked as
9 a letter, but I think it also covered perhaps 9 Exhibit 42, and I ask you if you recognize this
10 another topic, perhaps a business issue unrelated to 10 document?
11 Estabrook, I think. 11 A. Just one second, please.
12 Q. And do you see in the last paragraph of this 12 Yes. This is a letter that Mr. Robb
13 letter, where it says, second sentence, "We set 13 directed to the Board and myself in the spring
14 aside our land to preserve our forests and conserve 14 of 2017.
15 wildlife habitat. We believe that your Board has a 15 Q. And do you recall this letter coming across
16 duty to balance the landowners' legitimate property 16 your desk?
17 interests with limited public use (which has been so 17 A. Yes.
18 graciously allowed by the landowners over the 18 Q. So, at the top of the letter, Mr. Robb
19 years)"? 19 states, "We are surprised to learn that the town has
20 Is it your understanding that public use 20 apparently reversed its long-standing position on
21 has been allowed by the abutters over the years? 21 the trail at the end of Estabrook Road and now,
22 MS. ALLISON: Objection as to form. 22 after 85 years, is attempting to claim it is a
23 A. Yes. I don't disagree with the statements 23 public way of some type."
24 here that the abutters have been generous in 24 Are you familiar with the long-standing

617-451-8900 603-669-7922
7
8
9
10
1
1 VOLUME: I
PAGES: 1 to 49
2 EXHIBITS: See Index
4 SUFFOLK, ss. LAND COURT

DOCKET NO. 17MISC000605
5 _______________________________
TOWN OF CONCORD,
6 Plaintiff
7 v. MOTIONS
8 NEIL E. RASMUSSEN, ET AL,

Defendants
9 _______________________________
10
BEFORE: THE HONORABLE HOWARD P. SPEICHER
11
APPEARANCES:
12
Counsel for the Plaintiff:
13 MELISSA COOK ANDERSON, ESQ.
-and-
14 AUSTIN ANDERSON, ESQ.
ANDERSON & KREIGER, LLP
15 50 Milk Street - 21st Floor
Boston, Massachusetts 02109
16 (617)621-6500
17 Counsel for the Defendant Trustees

of the Pippin Tree Land Trust:
18 ROBERT NISLICK, ESQ.
MASSACHUSETTS BAR
19 Post Office Box 5207
Framingham, Massachusetts 01701
20 (508)405-1238
5 February 2019
21 Courtroom 1102
Boston, MA 02114
22
Audio Recording produced by FTR
23 _____________________________________________________________
Transcript produced by Approved Court Transcriber Reporter
24 Jill Kourafas
REPORTERS, INC.
25 617-786-7783
www.reportersinc.com
2
1 APPEARANCES (Continued):
2 COUNSEL FOR DEFENDANTS ANNA AND NEIL RASMUSSEN:

DIANE TILLOTSON, ESQ.
3 -and-
MICHAEL MOORE, ESQ.
4 HEMENWAY & BARNES LLP
75 State Street - Floor 16
5 Boston, Massachusetts 02109
(617)227-7940
6
COUNSEL FOR DEFENDANT PRESIDENT AND
7 TRUSTEE OF HARVARD COLLEGE:
LISA C. GOODHEART, ESQ.
8 -and-
GWENN KING, ESQ.
9 SUGARMAN, ROGERS, BARSHAK & COHEN, PC
101 Merrimac Street
10 Boston, Massachusetts 02114
(617)227-3030
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
32
1 MS. COOK ALLISON: -- over the years. For example, who
2 -- well, post-1932, there's no dispute that the Town hasn't
3 maintained the road post-1932. That was the whole point of the
4 discontinuance.
5 THE COURT: Mm-hmm.
6 MS. COOK ALLISON: So there's very few, you know, Town
7 actions on the road post-1932.
8 But to the extent that the Town, you know, oversees or
9 supervises actions on that road, we've identified the people
10 that we're aware of.
11 We want to do some more work for the early decades
12 following 1932, be sure we filled in those holes that certainly
13 in the last couple of decades, a few decades, we have an
14 understanding of what was done.
15 The pre-1932, you know, employees of the Town who
16 maintained or, you know, did any sort of corporate action on
17 this road is much harder to identify. I mean, the records, you
18 know, don't say "John Smith and Jim Jones graveled the road in
19 1867." I mean, they don't say anything about particular
20 individuals.
21 THE COURT: Well, as long as you identify what you've
22 got.
23 MS. COOK ALLISON: And that's what we've done.
24 THE COURT: That's not a problem.
25 MS. COOK ALLISON: Well, Mr. Nislick's request was a

34
1 5 that Mr. Nislick mentioned regarding the maintenance records,
2 it's -- so -- so we had objected to providing maintenance
3 records for what is now the portion of the road that has
4 continued to be used by the public and the portion that's not
5 in dispute in this case because the Town has maintained that
6 for decades and documents are voluminous, and in our view,
7 don't bear on what the Town did on the portion of the road
8 that's in dispute. And to the extent that there are documents
9 prior to 1932, prior to the discontinuance, it doesn't -- those
10 documents don't refer to this part of the road versus that part
11 of the road. We just cruise them all.
12 But to the extent we're talking about post-1932, of
13 course there's lots of maintenance that takes place on that
14 paved portion that we don't see why that's pertinent to the
15 issues in the case.
16 So what I thought what we all agreed actually following
17 this -- the filing of Mr. Nislick's motion was that we would --
18 the Town would supplement an interrogatory on -- to describe
19 the maintenance undertaken on that portion of the road in
20 response to one of the Rasmussens interrogatories and we've
21 done that. And that, I think, bounds as the concerns the Town
22 has about that voluminous production with the need to
23 understand, you know, to the extent that they think it's
24 relevant what type of maintenance has been done on the paved
25 portions.
LAND COURT

__________________________________________
)
TOWN OF CONCORD, )
)
Plaintiff, )
)
v. )
)
TREE LAND TRUST, )
)
Defendants. )
__________________________________________)
EMERGENCY MOTION OF DEFENDANTS LESLEE ROBB, RUSSELL ROBB III,

BROOKS S. READ, AND SUSANNAH KAY FOR SPEEDY TRIAL
PURSUANT TO G.L. c. 231, § 59F
i. Introduction
Pursuant to G.L. c. 231, § 59F (the so-called “Speedy Trial” statute), Defendants Leslee
W. Robb, Russell Robb III, and Thomas Wray Falwell, as Trustees of the Pippin Tree Land Trust
(collectively, the “Robbs”), together with Defendants Brooks S. Read, and Susannah Kay (the
“Read-Kays” and, together with the Robbs, the “Robb-Read-Kay Defendants”) hereby
respectfully move on an emergency basis for a speedy trial in this matter. A speedy trial is not
only mandated here by statute given the age of the Robbs, it is also necessitated by the
immediate and irreparable harm being suffered by the Robb-Read-Kay Defendants arising from
their dispute with the Town of Concord over their property rights, as detailed in their affidavits.
As the Court and the parties are all aware, on Monday, July 20, 2020, the Court
(Speicher, J.) is holding a view and a hearing on the Plaintiff Town of Concord’s emergency
motion for a preliminary injunction in this case. The view will focus on the property at issue – a
discontinued portion of Estabrook Road in Concord, Massachusetts known as “Estabrook Trail.”
The central question in this case is whether the Defendants own Estabrook Trail privately by
virtue of the Town’s 1932 discontinuance of that way under G.L. c. 82, § 32A. A decision by the
Defendants to close access to Estabrook Trail on April 5, 2020 to protect the property and
themselves from the public’s misuse of the Trail, especially given COVID-19 concerns,
precipitated the Town’s emergency motion. For the reasons argued in the Defendants’ opposition
memoranda and affidavits, filed herewith, the Court should deny the Town’s preliminary
injunction motion. In addition, the Court should also grant this motion for a speedy trial and
expedite this matter for resolution as soon as practicable for the following reasons: (1) a speedy
trial is mandated here by statute given the ages of Mr. and Mrs. Robb; and (2) this case is ripe for
adjudication, so further delay in settling Defendants’ property rights will cause them ongoing,
irreparable harm.
ii. Factual Background
While, as a legal matter, this case concerns whether Estabrook Trail is a public way,
given the age of certain Defendants – the Robbs – and the harmful actions and inactions of the
Town, the need to adjudicate this matter has become urgent.
With respect to the age of the Robbs, as explained in the affidavit of Ms. Robb, she and
her husband are in their 80’s and are each struggling with significant health issues. See Affidavit
of Leslee W. Robb, ¶ 32. Mr. Robb had a stroke in February of 2020, has Atrial Fibrillation, and
2
now cancer. Ms. Robb has chronic fatigue/fibromyalgia which causes joint pain to the point of
being bedridden. See id.
In addition, the actions and inactions of the Town towards Defendants and their property
interests have intensified the need to expedite this matter for resolution. As detailed in the
Affidavit of Susannah Kay, Estabrook Trail is an unpaved dirt trail which runs northerly from a
certain point in Concord, approximately two miles, towards the Carlisle town line. See Affidavit
of Susannah Kay, ¶ 6. The southern trailhead is adjacent to registered land owned by the Read-
Kays, on the easterly side of the trail, and by registered land owned by Neil and Anna
Rasmussen, on the westerly side of the trail. See id. Several weeks prior to Concord’s filing of
this case, in 2017, the Rasmussens replaced a chain across Estabrook Trail with a gate, at its
southern trailhead. See id., ¶ 16. Estabrook Trail is occasionally referred to as the discontinued
portion of Estabrook Road. See id. The Rasmussens and the Read-Kays maintain the gate, which
controls pedestrian access to a portion of Estabrook Trail. See id., ¶ 39.
As also explained in the affidavits of Dr. Kay, her husband Brooks Read, and Ms. Robb,
the Town has not only asserted a claim of ownership over the Trail without any valid legal basis
to do so, the Town has actively refused to protect even Defendants’ undisputed property rights.
See generally Affidavit of Susannah Kay; Affidavit of Brooks Read; Affidavit of Leslee Robb.
Specifically, the Town, in concert with citizen groups, has actively promoted the public’s use of
Estabrook Trail, falsely portraying it as a public resource. See Affidavit of Susannah Kay, ¶ 17.
When citizens have used Estabrook Trail and then proceeded to trespass on and abuse
Defendants’ abutting property, the Town has declined to act and, instead, actively encouraged its
officials to refuse to enforce laws and ordinances such as those relating to trespassing, keeping
dogs on leash, and vandalism. See id., ¶ 33.
3
Things were not always like this. For many years, the Robb-Read-Kay Defendants
explicitly and voluntarily welcomed and allowed members of the public to use the Trail to access
the Estabrook Woods. See Affidavit of Susannah Kay, ¶ 7. Unfortunately, in the last decade,
things changed considerably – not only do many more people enter onto Defendants’ land, but
they do so with the attitude of people who are entitled to be there and with no sense of respect for
Defendants or their property. See id., ¶ 8. As a result, even Defendants’ undisputed private
property interests on adjacent lands have been repeatedly subjected to trespasses, vandalism,
crime, drug activity, threats of arson, public urination, off-leash dog walking, and the refusal of
persons using the trail to follow rules. Defendants also suffer a grave fire risk. See id. All of
these circumstances are detailed in the Robb-Read-Kay Defendants’ affidavits on which this
motion also relies.
Matters came to a head and grew exponentially worse when the COVID-19 pandemic
struck. Despite Governor Baker’s repeated pleas that people stay home and social distance,
activity at the southern trailhead near the Read-Kay house increased dramatically throughout
March of 2020 and into April. See id., ¶ 9. People gathered on their property without masks,
without social distancing, and without regard to how far towards our home they would wander.
See id. Dr. Kay is a physician who deals daily with COVID-19 patients. Due to Defendants’
increased concerns about COVID-19 exposure, the Read-Kays, along with other defendants,
including the Robbs, who are elderly and dealing with health issues, decided to close access to
the trail to the public on April 5, 2020. See id. Since that time, the pressure on the Robb-Read-
Kays from the Town and citizen groups has intensified, vilifying Defendants for simply
attempting to protect their property. See id., ¶¶ 45-52.
4
iii. Argument
I. A SPEEDY TRIAL IS MANDATED HERE BY STATUTE GIVEN THE AGES OF

MR. AND MRS. ROBB
By statute, the Robbs’ right to a speedy trial is non-discretionary. “In any civil action in
any court of the commonwealth in which one or more of the parties at the time of
commencement of the proceeding is sixty-five years of age or older or during the pendency of
the proceeding attains the age of sixty-five, the court shall, upon motion of such person, advance
the proceeding for speedy trial so that it may be heard and determined with as little delay as
possible.” G.L. c. 231, § 59F. A movant under this statute “is entitled to statutory priority in
obtaining a trial date.” Carr v. Cesari & McKenna, LLP, No. SUCV20162087H, 2017 WL
2623123, at *6 (Mass. Super. Ct., Feb. 2, 2017) (Wilkins, J.).
In further support of this motion, Ms. Robb has submitted her affidavit (which is also
offered in opposition to the Town’s motion for preliminary injunction), confirming that she and
her husband are each in their 80s – well above the statutory age for a speedy trial. See Affidavit
of Leslee W. Robb, ¶ 32. They are also each struggling with significant health issues. See id.
Accordingly, they are entitled to a speedy trial as a matter of statute and the Court should allow
this motion for this reason alone.
II. THIS CASE IS RIPE FOR ADJUDICATION AND FURTHER DELAY IN

SETTLING DEFENDANTS’ PROPERTY RIGHTS WILL CAUSE THEM
ONGOING, IRREPARABLE HARM
In addition to the mandate of the speedy trial statute, this case is also ripe for adjudication
and should not be further delayed. Any such delay would cause further, irreparable harm to
Defendants. As the Court will note in the parties’ preliminary injunction papers, discovery is
now complete and the legal issues are well-developed for decision by the Court.
Given that Defendants’ property rights are at issue, any further time lost in settling those
5
rights is, as our legislature and courts have long recognized, the very definition of irreparable
harm. See, e.g., Davis v. Comerford, 483 Mass. 164, 180 (2019). Here, however, the
circumstances to which Defendants have been subjected make the harm occasioned by further
delay in the resolution of this matter even more acute. As detailed in the accompanying affidavits
of the Robb-Read-Kay Defendants, their attempts to stand up for the right to own and control
their own property have been met by a coordinated campaign by the Town and others of
defamation, intimidation, open trespassing, and other abuses. Therefore, for this reason as well,
this Court should prevent further harm to the Defendants by moving this matter forward to a final
trial on the merits as soon as practicable in the next 60 days.
iv. Conclusion
For the foregoing reasons, the Court should allow this motion and order that this matter
proceed to trial within the next 60 days, subject to the Court’s availability.

By their attorneys,
____________________________________
P.O. Box 5207
(508) 405-1238
rob@nislick.com
__________________________________
6
Todd & Weld LLP
One Federal Street
Boston, MA 02110
(617) 720-2626
I, Robert Nislick, certify that on July 17, 2020, I served a copy of the foregoing document on
counsel for all other parties, by first-class mail to:

Kevin D. Batt, Esq.
Boston, MA 02109
(617) 621-6500

Boston, MA 02109
(617) 227-7940
______________________________________
Robert Nislick

Read-Kay and Robb Opposition Materials 07-17-20

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Read-Kay and Robb Opposition Materials 07-17-20

Uploaded by

Copyright:

Available Formats

ROBERT NISLICK

July 17, 2020

Emily M. Rosa – Sessions Clerk

Re: Town of Concord v. Neil E. Rasmussen, et al, 17 MISC 000605 (HPS)

Dear Ms. Rosa:

Enclosed please find:

/s/ Robert Nislick

DEPARTMENT OF THE TRIAL COURT

MIDDLESEX, ss. MISCELLANEOUS CASE

THE READ-KAY AND ROBB DEFENDANTS’ OPPOSITION TO THE

Concord’s motion for preliminary injunction.

plaintiff’s motion for preliminary injunction.

1. Order that the plaintiff’s motion for preliminary injunction is denied;

through the entry of a judgment on the merits in this case;

SUSANNAH KAY, BROOKS S. READ,

/s/ Robert Nislick

Dated: July 17, 2020

on counsel for all other parties, by first-class mail to:

Melissa Cook Allison, Esq.

Diane C. Tillotson, Esq.

/s/ Robert Nislick

DEPARTMENT OF THE TRIAL COURT

MIDDLESEX, ss. MISCELLANEOUS CASE

THE READ-KAY AND ROBB DEFENDANTS’ MEMORANDUM IN OPPOSITION TO

“Read-Kays”) respectfully oppose Plaintiff Town of Concord’s motion for preliminary

Town’s motion is without merit and should be denied.

In the midst of an historic pandemic, which presents a specific, life-threatening risk of

pedestrian gate at the southern trailhead of Estabrook Trail.

prescription claim, which it was forced to recognize was meritless.

access to a portion of Estabrook Trail. See id., ¶ 37.

Town cannot prove a continuous twenty-year period of use or maintenance of locus.

line, as a public way. (Counsel Aff. ¶ 4, Ex. 3).

Commissioners for the County of Middlesex. (Id. ¶ 7, Ex. 3).

The petition stated in part,

On June 7, 1932, the Road Commissioners of the Town of Concord appeared at a

“that a portion of Estabrook Road, in said Concord, be discontinued as a public

¶ 7, 10; Robb Aff. ¶ 10.

trespassing, leashing dogs, and vandalism. See id., ¶ 33.

detailed in their affidavits.

Concord’s statement subjected defendants to serious harm because it proclaimed that

notices. See id., ¶¶ 49-50.

I. THE STANDARD ON AN APPLICATION FOR PRELIMINARY INJUNCTION.

440 Mass. 752, 762 (2004).

“[W]hen asked to grant a preliminary injunction, the judge initially evaluates in

476775 (Foster, J.) (May 9, 2018) (emphasis added).

A. If Estabrook Trail ever was a public way, it was discontinued pursuant to G.

Commissioners petitioned the County Commissioners for the County of Middlesex to

discontinuing Estabrook Road, which was additional or alternative to a town voting to

St. 1924, c. 289, provided:

“An Act relative to the discontinuance of certain ways as public ways.

See G. L. c. 82, § 32A (1924).

has previously and expressly held.

access” private way as contrary to settled Massachusetts law).

statutory private way with public access intact). 2

three alternative methods for establishment of a public way.

post-1932 prescription claim; Concord has no reasonable expectation of proving pre-1932

App. Ct. at 495.

1. Concord fails to identify any statute, and fails to demonstrate compliance

help it concoct arguments based on historical documents and circumstantial evidence.

not aid its cause.

numerous additional flaws, as detailed below.

a. The 1763 layout is not locus.

attachments, which reveals the following:

themselves. (See Vannozzi Aff., Tab 4, CONCORD_0003549).