After the Warren Select Board discussed the issue at its August 11 meeting, Carter engaged Attorney Lauren Kolitch to represent her. At the August 11 meeting, the board discussed an opinion issued by Town Attorney Paul Gillies stating that the path has been a public right of way since the 19th century. The board informed Carter in July that the town intended to engage a surveyor to come onto her property to prepare a record map of the right of way for filing in the town land records.
HEAVILY USED
Earlier this summer, Carter posted the footpath after trees were cut and litter was left on the property. At a public hearing she explained her reasoning at a well-attended public hearing. The path is used by schoolchildren but is particularly heavily used during the Fourth of July celebration when revelers move from the Warren Village street party to the festivities at Brooks Field.
Following last week's select board meeting, Kolitch issued a letter to the town pointing out that her client "does not adopt Attorney Gillies' opinion." The Gillies' opinion traces the land records and deeds for the Carter property from 1858 to the present, concluding: "My research shows it is a public right of way -- not a road in the formal sense, because it was not laid out as a highway by Warren selectmen -- and that there is no evidence of any discontinuance or abandonment in the land records."
DEED LANGUAGE
Gillies reported that there was deed language which allowed access to the land where the elementary school is, referring to that access as a road or highway.
"This 'highway' its origins in a January 1, 1858, deed from Daniel Ralph to C. Divoll, 9 Warren Land Records 81. The conveyance of a 58-acre parcel included 'the privilege of a road commencing near D. V. Ransom's house and leading across my land to go on to his flat," Gillies wrote.
Warren purchased the school land in 1961 and at the same time purchased the town gravel pit and lower mowing field from the same owners. The deed described the conveyance as part of the Divoll farm and included "land used as a right of way to the above described parcel."
Carter's family owns the land where the "right of way" passes, having succeeded Emily Cass and Sarah Ralph as owners who purchased the land from Cornelius Divoll in 1864.
STRONGLY DISAGREED
"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 15 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.
Kolitch strongly disagreed and in an August 12 letter advised the town that Carter would not allow surveyors on the property.
"Absent court order otherwise, my client disputes that the town or any other entity or individual has the right to enter upon or in her property in Warren Village," Kolitch wrote.
WHAT IS THE LEGAL BASIS?
"Please advise as to the legal basis of your assert that the town may merely 'prepare a record map of the right of way for filing in the Town Land Records and mark the path . . . and post the path as a public way.' I know of no legal basis for the town to do so, and my client expressly objects to any such action," she added.
"Under no circumstances is the town authorized to enter upon my client's property for any reason, including the 'installation of a fence.' Ms. Carter's property is posted. No member of the town may enter upon the Carter property absent express written authorization to do so," Kolitch concluded.
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