What is a dedicated way?
A dedicated way is created by transferring a way to the public for use, and the public or a municipality accepting that transfer (dedication and acceptance). Dedication depends upon the intent of the owner which must be made manifest by his unequivocal declarations or acts to appropriate his land to a public use and to surrender its control to the public (Hayden v. Stone, 112 Mass. 346, 1873). Prior to 1846, a dedicated way automatically became a public way. This is further explained in Hemphill v. Boston, 8 Cush. 195 (1851):
It is the gift of land by the owner, for a way, and an acceptance of the gift by the public, either by some express act of acceptance, or by strong implication arising from obvious convenience, or frequent and long-continued use, repairing, lighting or other significant acts, of persons competent to act for the public in that behalf. This is implied in the statute of 1846. It speaks of ways heretofore opened and dedicated to public use, and not already become a public highway. Here the terms `opened and dedicated’ manifestly import laid out and set apart by the owner, and the statute implies that something further is necessary to make it a highway in fact. Now he who gives his land to the public may prescribe the terms and limitations on which he gives it, and if it be accepted at all, it must be accepted with the limitations, qualifications and restrictions prescribed.
The dedication must be permanent (Longley v. Worcester, 304 Mass. 580, 1939).
What is a public way?
A public way can be created in one of three ways (Fenn v. Middleborough, 7 Mass. App. Ct. 80, 1979):
- By laying out and accepting a way by a city or town (M.G.L. 82, § 21 and § 23).
- By being a dedicated way prior to 1846.
- By prescription.
Prescription is actual public use, general, uninterrupted, continued for twenty years or more, such as to warrant a presumption that it has been laid out by the proper authorities (Jennings v. Tisbury, 71 Mass. 73, 1855). It is not clear whether adverse use needs to be proven as well, that is use by the public as a public right as opposed to having permission to use the road (Fenn v. Middleborough, 7 Mass. App. Ct. 80, 1979). Whether a road connects to a public way, whether it is paved, whether it has street signs, whether it appears on dated maps, and whether some traffic has been observed during sixteen years, is insufficient to prove prescription (Id).
Prior 1846, a dedicated way automatically became a public way. The law was changed in 1846 to require the formal process of laying and accepting a way, to restrict the liability of towns and cities (Jones v. Boston, 201 Mass. 267, 1909).
Even when a way is not a public way, there are circumstances where a town or city has to legally treat it as one. This is in the case of collateral estoppel, which is when a court ruled in an earlier case involving the town or city that a way is public, even if the ruling is incorrect (Barry v. Belchertown, 96 Mass.App.Ct. 314, 2019). Collateral estoppel can only occur if the material facts have not changed, and may not apply if it involves a different party and is found to be unfair to the town or city (Id).
Is every way either a dedicated way or a public way?
A parkway or boulevard is neither a public way nor a dedicated way, even if it is devoted to travel upon a roadway built for that purpose (Dakin v. Somerville, 262 Mass. 514, 1928).
Adding a paved way to a piece of land already devoted to public use does not create a dedicated way (Oliver v. Worcester, 102 Mass. 489, 1869). Such a road is not a public way either unless it was created in one of the three ways discussed above.