12/03/2009

By Kara Herlihy

The town of Warren has filed a petition for declaratory judgment requesting unobstructed access to a footpath that crosses Sue Carter's property in Warren Village.

The motion, filed November 23, 2009, also requests a ruling that the town of Warren has rights to the path by deed and/or prescription. 

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Carter posted the section of path that connects the village to the Brooks Field in early summer and engaged Attorney Lauren Kolitch after the town's Attorney Paul Gillies, issued an opinion that the path is considered a public right of way.

Gillies' opinion maintained that there is deed language that allows access to the land where the Warren School is and referred to that access as a road or highway.

"A right of way, as opposed to a highway, is not discontinued. It can be abandoned, if subsequent owners treat it as such, or more certainly, if it is closed off and unused for a period of fifteen years. Land records cannot show that, but the persistence of the references to this right of way through deeds leading up to the 1961 purchase of the land of Divoll by the town of Warren strongly suggests no interruption in the legal existence and use of this lane from the time of its creation in 1858 to the present," Gillies concluded.

In July, the select board informed Carter that they intended to hire a surveyor to complete a record map of the right of way to be filed in the town land records. Kolitch communicated to the town in writing on August 12 that the town was not authorized to enter Carter's property for any reason.

The town then filed a preliminary injunction, per the recommendation of town's attorney, in an effort to gain access to the footpath. Gillies also recommended that the town hire a surveyor who was "articulate enough to come to court and testify," according to select board member Burt Bauchner.

Bauchner relayed Gillies' recommendations to fellow town officials at a September meeting.

"What that does is it changes the dynamic of the piece of litigation and it makes it very quick. It comes up in court very quickly and he (Gillies) feels strongly that the evidence is almost incontrovertible that the town owns the right of way and has owned it since the 1850s," Bauchner said.

The November 23 motion filed by the town to the Washington County Superior Court stipulates, "The footpath also allows the students and their families, and the teachers of the school to walk to the school without walking on the road."

It continues, "Walking on the side of the road poses safety concerns for individuals, especially the younger school children."

The town requests that the court issue a ruling that the town of Warren has rights to the path by deed as well as a permanent injunction to prevent Carter from obstructing the public use of the footpath.

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