Estabrook Answers

The idea of protecting Estabrook Woods as a nature preserve was first discussed by the Concord families that owned the Woods in the early 1950s; they considered protecting the woodlands as a "game preserve and sanctuary." One of the preliminary steps the owners took that began the protection of the woods was the legal closure of the Estabrook Trail to the public in 1932.

Through the 1950s, those families resisted offers by developers and began to consider how to protect the Woods. The Middlesex School, The Nature Conservancy, and Harvard University all were brought into the plan in the 1960s, which began with large transfers of land to the Nature Conservancy, and subsequently to Harvard. This effort brought the Concord citizens together who eventually formed the Concord Land Conservation Trust, which continues land preservation work to this day.

In 1969, the Commonwealth established a new law that enabled permanent conservation restrictions. Some landowners within Estabrook began to place their lands into permanent conservation restrictions. In 1971, the Town of Concord acquired the parcel now known as Punkatasset.

In the 1990s, the nature preserve was threatened by potential adjacent development. The Land Trust, the Trustees of Reservations, and other organizations worked together on “The Campaign for Estabrook Woods” to prevent adjacent development, which successfully added 400 acres of protected land to Estabrook Woods.

The result is an unusual situation where a large nature preserve is comprised of many parcels, held mainly by a group of private landowners, plus some lands belonging to the Towns of Concord and Carlisle. Most people are surprised to learn that the Town of Carlisle actually owns more of the woods (11%) than the Town of Concord owns (7%).

Most of Estabrook Woods is a private nature preserve. According to the Commonwealth of Massachusetts 2012 BioMap2 Study Estabrook Woods contains over 60% of Concord's space designated as Core Habitat, with 22 species listed as species of Conservation Concern.

The early creation of the Estabrook Woods began with large transfers of land to the Nature Conservancy, and subsequently to Harvard. Most of the property deeds to Harvard contain the following restriction clause:

“That said premises shall be maintained as a nature preserve for the purposes of field studies and research by the Museum of Comparative Zoology of Harvard University.”

Furthermore, much of Harvard's Property, and also the Town's land at Punkatasset, are subject to separate registered Nature Preserve Restrictions that require that the land be maintained as a nature preserve.

This means the property is legally bound to be a nature preserve. Harvard further clarified the public use of the Harvard land in their commitment to donors in 1966:

“Activities that might endanger the character of the Field Station as a natural preserve and activities that have not been permitted in recent years by the present owners will not be permitted by any visitor on any part of the Field Station.”

In addition, some landowners began to place their lands into permanent conservation restrictions under the newly created state law allowing those restrictions. This work contributed to the creation of the Concord Land Conservation Trust. In 1971, the Town acquired the parcel now known as Punkatasset. The Town's proposal for that acquisition stated:

"A major consideration in the importance of this acquisition is that this land forms a natural buffer along the southern and eastern boundaries of Harvard University's 650 acre Estabrook Woods "Biological Research Preserve."

In 1994, the Sierra Club stated that:

“The area known as Estabrook Woods in Concord and Carlisle may be the most important ecological reserve in our region of Massachusetts… we support the designation of Estabrook Woods as an Area of Critical Environmental Concern.”

In the 1990s the nature preserve was threatened by potential adjacent development. The Land Trust and other organizations worked together on “The Campaign for Estabrook Woods” to prevent adjacent development, which was largely successful.

From the early correspondence between the property owners, through today, the goal has been to create and maintain Estabrook Woods as a nature preserve. This is how the early landowners described it. It is how it was described in public announcements. It is legally mandated to be a nature preserve in many of the deed restrictions, and that is how the many current owners describe it and manage it. Estabrook Woods is mainly privately owned and the landowners intend to continue to work protect it as what it is: a nature preserve.

There are additional descriptions of the ecology and history of the Woods at The Estabrook Council website.

No. A public park is managed for recreational use by the public. In a nature preserve like Estabrook Woods, the land is managed for natural habitat, which requires that the nature of use and volume of use by the public be limited.

Most nature preserves do not allow vehicles, hunting, mountain bikes, or dogs; all of which threaten the peaceful existence of wildlife. There has been some promotion on the internet and social media of Estabrook Woods as a public park, or a destination for off-leash dog walking. This use is not considered compatible with management as a nature preserve (a survey found that no nature preserves allow off leash dogs, and over 60% do not allow dogs at all).

A frequently asked question at nature preserves is: "How can you have a park and not allow dogs?" A typical example response to this question is provided by a preserve in New York:

"As a nature preserve, these Woods are managed differently than a park is managed. Our goal is to maintain the biodiversity found in the nature preserve while allowing the public to visit this special area. There is scientific evidence that allowing dogs into nature preserves reduces the diversity of birds that will inhabit an area. Therefore, in keeping with our management plan, we do not allow dogs at this Nature Preserve."

There are people who would rather that Estabrook Woods be managed as a public park. Some lands do not have critical habitat, are too small, have no wildlife corridors, or have become sufficiently degraded that they are not suitable as nature preserves - and can be appropriately used as public parks. According to the Commonwealth, at this time, Estabrook remains a core habitat area for many endangered species, it is mainly privately owned, and the owners agree that it will remain a wildlife preserve and do not intend for it to become a public park.

The Estabrook Woods Access Committee identified 21 entrances to Estabrook Woods. While most are private neighborhood entrances like Estabrook Road, eight have public access by right (because the access belongs to the Town, a land trust, or there is a deeded easement) or the owner has granted a license for public use. These public access points are Punkatasset, two at Monument Farm, Kibbe Place, Malcolm Preserve, Chamberlin Woods, Daivs Corridor, and Prospect Street. The remaining thirteen accesses are private and are managed by the property owners; some of these provide no public parking and use is only by permission. The access at Estabrook Road is a private access, where the owners granted the public permission for use.

Some access points have parking available, these are:

Punkatasset: 5-9 spaces
Chamberlin Woods: 17 spaces
Estabrook Road: 11 spaces
Kibbe Place: 5 spaces
Malcolm Preserve: 10 spaces

For decades, Punkatasset was the primary access to Estabrook Woods. The Estabrook Woods Access Committee found that the parking there was considered inadequate. The road shoulder parking area at Punkatasset is not well defined, and the committee found that there were a maximum of 12-13 spaces in use. However the Town Engineering Department concluded that only about 5 of those met parking standards. The Committee Recommended, and the Select Board adopted, that a 16-20 car off-road parking area be created, along with 3-5 additional parking spots on the Town land at Monument Farm Road.

The Monument Farm Road residents took legal action to prevent the Town from creating parking at the Town-owned land there, citing the problems that had occurred at Estabrook Road. The Town did not challenge the Monument Farm Road residents and has abandoned parking access plans at the Town land at Monument Farm.

The NRC began to develop a plan for a 16-20 space off-road parking lot at Punkatasset. They received a letter of concern from Harvard saying that level of use would likely create unacceptable impacts on Harvard's nature preserve, and the NRC responded by reducing that plan to 12 parking spaces.

While this was occurring, the NRC was, in parallel, considering the issue of dogs on Town conservation lands, and on August 7, 2017 the Town Manager stated that:

"It has been determined that a dog park is not an appropriate use for conservation land."

The Town subsequently instituted a dog leash regulation a Punkatasset. Since the most common use of Punkatasset had been as an off-leash dog park, the regulation resulted in a decrease in users seeking a dog park, relieving parking pressure. In the summer of 2018, the NRC reported that usage of Punkatasset was down, and there was no need for additional parking capacity, which is currently 6-7 spaces.

The largest parking area serving the Estabrook Woods, the 17 car parking lot at the Chamberlin Woods entrance on Lowell Road, is at most times completely empty and essentially unused.

Visitor counts show that the number cars parking at all locations combined averages to only about 3 cars at a time, with a peak of around 20 daily total on special days; this a tiny fraction of the total parking capacity at all the access points of over 50 cars.

The 1700-acre Estabrook Woods is primarily private land, with the largest landowner being Harvard University which owns 682 acres (about 40% of the Woods). Private families own 28% of the Woods. The Town of Concord owns about 7% of the Woods and the Town of Carlisle owns about 11%. A summary chart showing the proprietors of the Woods is below:

Many people are surprised to learn that the publicly owned land of Estabrook Woods makes up only 18% of the Woods and is primarily in Carlisle.

Some of the land in Estabrook Woods is subject to conservation restrictions. Despite some claims to the contrary, none of those restrictions were purchased with Concord taxpayer funds.

The property owners each maintain the trails on their respective land. The Town of Concord only maintains trails on the Town land at Punkatasset and Monument Farm. The Land Trust maintains trails on its land. The main Estabrook Trail is maintained by private property owners. There is no trails committee or other volunteer organization authorized to maintain trails in Estabrook Woods, except on some lands in Carlisle. Members of the public should not cut, clear, or otherwise maintain trails without the landowner's permission.

There are many different parcels comprising the Estabrook Woods and each landowner could establish separate rules. To reduce confusion, many of the private landowners have agreed to a common set of rules, which are posted at various locations around the Woods. There are some landowners with different rules: The Towns of Concord and Carlisle each have their own rules; the Town of Concord has specific dog rules, and the Concord Land Conservation Trust has its own set of rules.

There is additional information about the rules for the Woods at The Estabrook Council website.

The Estabrook Trail passes across land of four private landowners and Harvard University. In some sections, different owners own opposite sides of the trail, with the boundary in the middle of the trail. The trail is 9340 ft long. 53% of the Trail, in the middle and northern sections, belongs to Harvard University (see map). Four other families hold the remaining 47% of the trail. The Trail is private land and there is no Town land on the Trail. The ownership of the trail is public information at the registry of deeds.

In the past, the Town has made confusing statements about the ownership of the Estabrook Trail. The Select Board of the Town of Concord on Oct 1, 2018 issued a clarifying statement regarding this issue:

“The Town makes absolutely no claim of ownership of the Trail.”

The Concord Journal subsequently reported on Dec 4, 2018 that:

“Originally Town Manager Whelan had said he believed the trail was public land, but has since walked that claim back, having received confirmation from town counsel that the trail is on private land.”

One misunderstanding about the Trail is whether it is (or once was) a public way. The Town of Concord does not “own” roads, except in a few cases; instead, a road is a documented form of easement over private land. Town records, including records at the Public Works department, are the reference for public roads in Concord. The official town inventory of roads shows that Estabrook Road ends where the pavement ends, and there is no public road beyond this point. To be a public way, state law requires that a road be documented by a formal process called “layout and acceptance." Massachusetts law requires a Town to keep records of public ways and be able to produce them on request. The Town’s official records show no layout and acceptance of the Trail. There is no record of any Town official ever claiming to have, or believe there was, a layout and acceptance of the Trail. To be certain, a formal legal request was made to the Town to search for such records. None were found. Therefore, the Trail is not a public way and is private land.

There was also a public statement made by the Select Board Chair on June 18, 2018 that Estabrook Trail was once a county way (which is different than a Town public way). An official list of the past County Ways in Concord can be found at the South Middlesex Registry of Deeds. There approximately 30 former county ways in Concord and Estabrook Trail is not listed among them. There are also many official historic maps of county ways and none show the Estabrook Trail. Of particular note is the official Town map of 1794, ordered by the state legislature, where the Town was required to map the county ways, and Estabrook Trail is not on the map.

The Estabrook Trail was created in parts over time. The southern part of Estabrook Woods was an area owned in common by a group of twenty families and known as the "Twenty Score." Documents show that the southern part of the Estabrook Trail was created by the landowners (not by the Town) as a private way around 1720 so they could reach the "Oak Meadow" area later dammed to become Mink Pond.

Forty years after the southern part of the Trail was made by the owners, in 1760 some residents of the far north of Concord (Which is now part of Carlisle), asked the Town if they could have a more convenient road to the Concord Meeting House. At that time both Monument Street and Lowell Road were the main roads, but these residents lived in the middle between these roads and needed to follow a circuitous route around swamps to reach those existing roads. At this same time many of those residents joined in a petition to leave Concord and start a new town called Carlisle. The Concord Town Meeting denied their request for a road, presumably since the road would be unnecessary if the new Town of Carlisle were formed. The residents nevertheless bypassed the town and petitioned the County to help them get a more convenient road. The County ordered that a private way be created from the Carlisle area to the south to connect to the existing private way near what is now Mink Pond, IF the landowners along the proposed road would agree to volunteer their land. However, there is no record that any of the landowners did give their land, so the road was never officially confirmed.

Although the private way was made in 1763 to connect from Carlisle to Mink Pond, the Carlisle residents at that same time hired a preacher and created a meeting house in what is now Carlisle Center, and began to attend worship services there, causing the new road to be unused for travel.

The southern part of the Trail was a wholly private way created by the owners on their own land. The northern part of the Trail was a private way ordered by the county but never completed. Neither of these sections of the Trail was ever established by the Town as a public way- as other roads in Concord have been established since the late 1600s. In fact when Concord had the opportunity to establish the road in 1763, the Town Meeting voted it down.

There is little documented in the Town archives about the Trail, other that it was used for logging. It is not shown on any of the early Town maps of 1754, 1779, 1794, 1801, or 1819. What are now Monument Street and Lowell Road are on those maps and were the main roads to Carlisle and to the north. There is an old stone cellar hole along the Trail, said to have been the home of the Estabrooks, but archaeological studies of the site show that it dates to around 1780 when some local citizens obtained rights to mine lime on the same lot. What is known is that it was abandoned earlier than circa 1830.

There is an apocryphal story that 19 minutemen from the north used the Trail to reach the North Bridge on April 19, 1775, but the original primary sources and recent research suggest they came down what is now known as Lowell Road.

The first record of the Estabrook Trail on a map is 1830, and shows no residential dwelling on it. In 1845, the author William Ellery Channing wrote a poem about a walk he took to the site of the abandoned cellar hole on the Trail; in that poem he said of the Trail: “No track had worn the old deserted road...no other signs of life beyond ourselves.” In 1859, Thoreau described it as a road "Undiscoverable to the uninitiated" and "…which no jockey, no wheelwright in his right mind drives over…”. In the Town records of 1891, Estabrook Trail is described as “little better than ruts through a piece of woodland.” In 1932, the Concord Road Commissioners said the Trail “has for a long period ceased to be in general public use” and voted to grant the landowner's request to close it to the public. These are just a few of the known quotes about the Trail.

There is additional information about the early history of Estabrook Woods at The Estabrook Council website.

After the discontinuance of 1932, the Trail was gated closed by the landowner (who owned both sides of the current Estabrook Road and both sides of the southern section of the Trail). What is now paved Estabrook Road served only the single homeowner, who owned the only two homes on Estabrook Road. The area around the current paved part of Estabrook Road was all open fields, and the Trail led into the woods. The Trail was used by friends and neighbors with permission. According to long-time neighbors, the Town and the owners were clear that the trail was private. The Town communicated this to landowners, to the public, and in various Town documents. The Town had told property owners deeper in the woods they could not develop their land because the trail was discontinued and could not be used for access. The trail was listed as discontinued in all public records.

The gate on the trail is shown on maps of 1947 and 1956, and one of the first known photographs showing the gate was from 1968. The owners of the gate controlled access to the Trail, and used their section of the Trail as a maintenance road for their properties, which extended over one mile into the woods along the trail.

One of the only descriptions of rights to the Trail since 1932 is a letter written in 1995 by Mary P. Sherwood to Helen Bowdoin of the Thoreau Country Conservation Alliance, which says:

“The year being about 1958 or 1959…One day I decided I wanted to walk in along the Estabrook Trail… I knew an Emerson lived in the old house at the beginning of the trail and I felt I shouldn’t go in there without permission.”

Steadman Buttrick, the owner of much of Estabrook Woods in the 1960s, said in 1997 “People walk through Estabrook Woods now. They never used to.”

The property owners controlled access to the trail and installed and maintained a gate (1992 photo):

Note how difficult it is to see the chain in the photo, which is the key reason the chain gate was later replaced with a more visible white wooden gate. The landowners granted permission for the Trail's use, occasionally closing it for maintenance. For a time in the 1980s the trail was blocked with a chain-link fence:

During the 1990s, property owners made the southern Estabrook Trail entrance more inviting to the public by clearing and grooming the trails, taking down dozens of "No Trespassing" signs, creating scenic vistas, posting informational signage, and even constructing the current roadside parking area for visitors (which is still maintained by the property owners). A slow increase in the number of visitor began, which continued to increase over the following years, culminating in a very large growth of use around 2013-2016.

Around 2005, some Estabrook Woods landowners joined in posting harmonized rules for the woods:

In the spring of 2016, these rules were updated based on feedback from the Town's Estabrook Woods Access Committee, and after seeking comment from the Town Manager:

In early 2017 an updated version of these rules were adopted by a group of landowners:

The volume of use began to increase dramatically starting around 2013, to the point where it overwhelmed the neighborhood by 2015. Over 18,000 dogs per year were passing through the residential property at the southern entrance of the Estabrook Trail alone, with increasing numbers at other access points as well. The type and volume of use was not consistent with a nature preserve or what the owners intended when they granted permission for visitors to use the Trail. The property owners approached the Town to request help in managing this problem. The Police determined that the situation was unsafe and implemented parking restrictions. These parking restrictions were objected to by visitors, which began a public controversy.

In mid 2017, the owner replaced the chain gate. After a bike rider hit the chain and crashed, the landowners learned that chain-gates are hard to see, and are no longer considered safe, giving rise to potential liability. For this reason, federal, state, and many municipal governments have replaced old chain gates with new visible gates of wood or metal. The current gate at the Estabrook Trail is based on a federal standard wooden gate design that was aesthetically improved. The Town admits that the gate is located on private land. The design for this gate, and the reason for replacing the chain gate, were communicated in writing to the Police, the Town Manager, the Planning Department, and the Engineering Department a year in advance, and only positive comments were received.

As late as June of 2016, the Town Manager reiterated the understanding that the Trail was private by saying at a public meeting that:

“The town abandoned the unpaved portion of Estabrook Road in 1932, and typically the public rights to use the road are abandoned at that time to the abutters. There is no publicly owned land in that general area. So there is no documented right of access.”

Subsequently, the Town reversed its long-stated view of the private nature of the Trail, and expressed a completely new opinion that the Town, or the public, have an unarticulated right to access on the Trail. Although the details underlying this new opinion have never been made public, the Town Manager has been quoted in the paper as saying:

“The Town only abandoned their obligation to maintain the road.”
“The public controls the access.”
“It’s the Town’s view that the land is not private.”

These public statements are unsubstantiated. The landowners made a public records request to the Town, requesting any documents to support those statements, and none were produced. The Town has subsequently admitted that the land and the Trail are private.

The Trail is private; the landowners have allowed public use by permission, subject to certain conditions. The Town filed a lawsuit in October of 2017 seeking to change this and to seize access rights on the Trail owned by Harvard University and four resident landowners.

No. The trails accessed at the end of Estabrook Road are on private land. This is not disputed.

A trail on private land may have public access by right if it is a "public way" as defined by state law.

The Estabrook Trail, however, is not a public way. The official Town inventory of roads shows that Estabrook Road ends where the pavement ends, and there is no public way beyond this point. To be a public way, state law requires that a road be documented by a formal process called “layout and acceptance." Massachusetts law requires a town to keep documentation of public roads and be able to produce it on request. The law also requires that Towns maintain public ways in passable condition for vehicles. The Town’s official records show no layout and acceptance of the Trail. There is no record of any Town official ever claiming to have or believe there was a layout and acceptance of the Trail by the Town. To be certain, a formal legal request was made to the Town to search for such records, and none were found. Therefore, the Trail is not a public way and is private land.

Any uncertainty regarding this issue ended in 1932 when the owners asked if they could close it to the public and the road was formerly discontinued by the County. The discontinuance of 1932 specifically ordered that the Trail was not a public way and was private. It is an undisputed fact that the Estabrook Trail is a private way. Furthermore, the Trail was ordered to be posted to "warn the public against entering."

Owners can grant permission for people to use a private trail, which is the situation along most of the Estabrook Trail.

The conflict is fundamentally about whether the Estabrook Woods are to remain a nature preserve or become a public recreational park. The owners intend for it to remain a nature preserve.

A misunderstanding about the nature and ownership of the Woods unnecessarily escalated the controversy. Based on representations by the Town, many citizens still mistakenly believe the Estabrook Woods to be public lands that they are entitled to use.

Most of the land in Estabrook Woods, however, is private, and access is granted only by permission of the respective owners. Currently, that access is granted, as it has been through the recent past, under conditions meant to ensure that the Woods continue as a nature preserve and that the resident landowners, who have permitted the use of their lands, are not unduly impacted.

Around 1966, the Estabrook Woods was formed as a nature preserve as a result of the actions of a number of Concord families and Harvard University. The landowners since that time have permitted use of most of the woods by nature lovers. The Estabrook Trail goes across private residential and conservation land and is one of the many trails used by visitors. While the Woods were established to protect habitat from human impacts, people in increasing numbers are seeking recreational spaces for activities like dog walking and mountain biking that do impact habitat.

The Town, for decades, had been in unified agreement that the Woods should be protected for habitat value. In 1991, Concord's Open Space Plan expressed concern regarding managing increasing impacts:

"The Town should also continue to be alert to problems caused by recreational use of Estabrook Country... An effort should be made to control recreational use by not greatly expanding accessibility and parking."

Around 2015, the Woods came to be promoted as an off-leash dog park on the internet and elsewhere. The nature and volume of use changed dramatically. The small parking area at the Town’s public land began to overflow with dog walkers who began to use other private entrances to the Woods, especially the entrance to the Trail at Estabrook Road. The number of dogs brought into the Woods grew to over 20,000 per year. Numerous incidents between and among unleashed dogs with people, wildlife, and livestock followed. In addition, accumulations of dog feces were contaminating the trails and watershed areas. This use was not consistent with a nature preserve. Consequently, the landowners instituted a dog leash requirement and dog-waste pickup requirement in early 2016 to protect visitors and wildlife. At the end of 2017, the Town of Concord’s own Natural Resources Commission enacted the same rules on their part of the Estabrook Woods.

Off-leash dog advocates have objected to these leash requirements and are attempting to reverse or override them. They have attempted to bring articles to Town Meetings to force conservation lands to allow loose dogs. In the case of Estabrook Trail, they have pressured the Town to try to seize control of the Trail to prevent landowners in Estabrook Woods from establishing rules for use of their own private lands. The Town is seeking such an easement on private land from the Land Court, which is the core of the ongoing lawsuit.

As this situation was unfolding, Town officials were quoted in the newspaper making statements that were not accurate and thus served to inflame this situation, including:

“The public controls the access” (April 27, 2017)
“The Town’s view that the land is not private” (Oct 12, 2017)

As a result of these statements, various people began to assert that the land was public, that the Trail was public, that the Trail was a public street, that the use of the Trail was not subject to any rules, and other claims.

Unfortunately, it took over a year for the Town to issue corrections to their prior statements. In October of 2018 they clarified that:

“The Town makes absolutely no claim of ownership of the Trail.”
“The Town is in no way making any claim on the abutting private lands.”

The Estabrook Woods landowners improved and groomed trails in the Woods, took down "no trespassing" signs, repaired stone walls, constructed and maintain a parking area for visitors, provide event parking for non-profit groups, and put up a "Welcome" sign. They are the only private landowners in Concord whose accommodations have been so extensive, and yet, in return, they have been sued.

Other landowners who have permitted public use of their lands are watching this situation with great concern. The idea that allowing public use of your land could result in the public perceiving they have an unlimited entitlement, and the Town suing to seize control of your land, is naturally alarming.

The Estabrook Woods Access Committee found that most people wrongly believe that the Estabrook Woods is public land which they are entitled to use. The Committee held public hearings where they explained that Estabrook Woods is mainly private, and also placed an op-ed in the Concord Journal explaining this. Nevertheless, the incorrect perceptions exist.

Punkatasset is Concord public Town land, but it is only about 7% of the Estabrook Woods and is not located near the Estabrook Trail. Due to lack of signage and information, many people equate the Town's land at Punkatasset with the entirety of the Estabrook Woods, but in reality the Town-owned Punkatasset is only a small portion of the Woods.

This incorrect belief that the Woods and the Trail are public continue to persist despite clear statements by the Town that they are private, such as when the Select Board said on Oct 1, 2018:

“The Town makes absolutely no claim of ownership of the Trail.”

“The Town is in no way making any claim on the abutting private lands.”

A key reason why people are confused is because Estabrook has been described in various Town planning documents over the years as part of “Concord’s Open Space”, where open space is often defined as “publicly accessible.” Consequently, some people may have incorrectly assumed that the land belonged to the Town. In the newly updated Town Long Range Plan, the Planning Department recognized this problem, and has changed the descriptions of Estabrook Woods to more accurately reflect the private nature of most of the Estabrook Woods.

In late 2015, the Police and the Town's Traffic Management Group responded to reports of parking problems on Estabrook Road and determined that parking controls were needed. These controls were put in place, limiting parking to the 11 road-shoulder parking spaces that had been created by a resident. When the Select Board considered ratification of these parking restrictions, concerns were raised about access limitations to Estabrook Woods. The subsequent discussions at the Select Board indicated confusion regarding what land was public, what trails were public, the purpose of the Woods, rules regarding use of the Woods, and what access was appropriate for Estabrook Woods. The Select Board established a committee to look into these and related issues and make recommendations to the Town.

The Committee was given a formal charge by the Select Board. While many people thought the purpose of the committee was to look at Estabrook Road parking, it is notable that the Committee charge considers the larger issue of Estabrook Woods and makes no reference to Estabrook Road.

The biggest problem the Committee faced was public misunderstanding regarding the ownership and purpose of the Woods. Even some Committee members were surprised to learn that Estabrook is mainly privately owned, and almost all public access is by permission. The Committee attempted to correct misunderstandings about the Woods in a Guest Commentary in the Concord Journal. Despite the efforts of the Committee to correct the mis-perception, much of the general public still does not understand that the land is private.

Another problem the Committee faced was the issue of protecting the Woods as a nature preserve, in light of the desire by some to use the Woods for utilitarian purposes - such as using it as a dog park or mountain bike riding course.

In addition, the Committee endeavored to quantify the level of impacts to the Woods and nearby residents, what was driving those impacts, and to what extent those impacts should be limited.

Finally, the Committee needed to identify and suggest what rules might be enacted to protect the Woods now and in the future.

The Committee struggled somewhat with its limited jurisdiction. Citizens were led to believe it could establish policy regarding the Woods, but, in reality, the Town only has authority related to the 7% of the Woods owned by the Town.

The Committee solicited input from the public and found that sentiments about Estabrook Woods fell into two opposing camps; either people were concerned about overuse and protecting the nature preserve, or they believed that Estabrook was a public park that people were entitled to use - and that access should be expanded. Many of the people concerned with overuse and impacts were particularly concerned about dogs, and problems with dogs. Those supporting access expansion believed access to "their public park" was being limited by nearby residents (some of whom were actually major landowners of the Woods). A central finding was that most people mistakenly believed that Estabrook Woods was public land, which often led to their beliefs about how it should be treated.

An example of a letter to the Town representative of those in favor of protecting the resource is here. An example of a letter in favor of providing expanded unfettered access is here. The difference in tone of these example letters was representative of the general tenor of the debate. What became clear to the Committee was that the mistaken belief that Estabrook Woods was public land was causing a lot of the hostility among members of the public, who often suggested there was a conspiracy to take away their rights. A review of various information about the Woods, such as Town maps, partially explained how some people may have come to believe the Estabrook Woods was public. The Committee tried to address this mis-perception during the public hearings, but it became clear that a much more sustained information campaign would be needed to correct mistaken beliefs held by many members of the public.

The Committee found that the demand drivers for use of the Estabrook Woods and its various access points were: desire for an off-leash dog park, promotion on social media and by word of mouth, availability of safe parking, quality of trails and scenic locations, and availability of Trail loop options.

Another core finding of the Committee was that almost all of the problems identified were related to dogs: dogs charging and frightening people, irresponsible dog owners, loose dogs bothering livestock, loose dogs invading residential property, dog feces, yellow snow at the access points, and dog-related noise. The Committee also found that Estabrook Woods was being promoted as a dog park. A group called "Metro-West Pack" was coming to the Woods and purposefully allowing their dogs to "socialize" and to hunt in packs in the Woods. Pet stores were recommending Estabrook Woods as a dog park destination. Concord's own visitor center was sending people who asked about dog parks to Estabrook Woods. Various books, on-line articles, and social media postings were promoting Estabrook Woods as a dog park. The Estabrook parking overload of 2015 was almost completely due to expansion of use as a dog park.

Another finding of the Committee was that there are 17 entrances to Estabrook Woods. Some of these entrances are clearly neighborhood entrances or private entrances with little or no parking, where the neighbors would object to expanded public access. The Committee was contacted by Carlisle representatives who requested that the Committee not make recommendations about or promote the entrances in Carlisle. But despite all of these entrances, many people knew of only two, which were Punkatasset and Estabrook Road - and they found that, of those two entrances, many felt Punkatasset was deficient due to unorganized and unsafe parking.

The Committee also found that the largest parking area for Estabrook Woods, a 17 car road-shoulder on Lowell Road at the Chamberlin Woods entrance, was underutilized and relatively unknown.

The Committee found uncertainty regarding the amount of parking along the Monument Street access at the Punkatasset. The Committee members found 13 parking spaces in use, but the Town Engineering department found that only 5-6 were actually considered safe parking spaces. While the Committee was working, a resident made driveway modifications that essentially eliminated 3 safe parking spaces.

The Committee had difficulty understanding the nature of the Estabrook Road access. The Town first advised the Committee that the Estabrook Road access was private; at the first Committee public hearing, the Town Manager said:

“The Town abandoned the unpaved portion of Estabrook Road in 1932, and typically the public rights to use the road are abandoned at that time to the abutters. There is no publicly owned land in that general area. So there is no documented right of access.”

About two-thirds of the way through the Committee's work, the Town reversed this position and said they believed the Town had some old public rights to the Trail, although the basis of these claims was not made public. The Estabrook property owners introduced a legal opinion that the access trail was private with no public rights, other than permission. The Committee expressed concern to the Select Board that this uncertainty made it difficult for them to make recommendations.

A key finding of the Committee was that the Town should focus on providing parking at Town-owned land, and not at private trail access points; that the majority of parking should be at the Town's land; and that parking should be safe, marked with appropriate signage, and well maintained.

The Committee needed to come to an agreement regarding the amount of parking spaces to recommend, and where to recommend they be located. The Committee decided to recommend to keep all existing parking, and to add some additional parking for Estabrook Woods, but that this additional parking be provided at the Town's lands at Punkatasset and Monument Farm Road. (It is notable that the parking capacity at the Town's lands has actually decreased in the two years after the Committee's recommendations).

Due to the uncertainties regarding public access rights on Estabrook Road, the Committee recommended that the Select Board work to resolve this issue. While this recommendation was being formed, the Committee was led to believe that the landowners and the Town were working on an agreement to allow public access, however the Town subsequently terminated these discussions on October 31, 2016. (see the section "Were there attempts to negotiate?" below)

The Committee suggested that common rules for Estabrook Woods be developed, with a particular focus on solving dog problems. The Committee suggested some rules but understood that it was actually up to the property owners to develop their respective rules.

The Select Board adopted the recommendations of the Committee, and made the following statement:

"The Committee concluded and the Board agree that, " ... that some visitors believe that the Woods are part of a large public park or a regional dog park, when in fact most of the land is privately owned for the purpose of research and conservation, with portions of trails generously open to the public. With few exceptions, these properties are managed by private landowners, without public funding or public staff. These misunderstandings are exacerbated by the internet, where information about the Woods (accurate and inaccurate) is now broadly available, attracting more users and sometimes conveying inaccuracies about the ownership, purpose, stewardship, and management of the Woods."

The complete Committee final recommendations are available here.

During the period when Estabrook Woods was promoted as an off-leash dog park, there was a rapidly growing demand for parking. For decades the primary parking for Estabrook Woods was at Punkatasset. Estabrook parking first became a challenge during the cross-country ski trend of the 1990s, when Punkatasset would overflow to Estabrook Road on excellent ski-days. At the advent of the internet, Estabrook became better known and was often mentioned as a dog walking destination. Improvements to the trails by the property owners at Estabrook Road, along with a parking area made by the residents there, caused that neighborhood to see a major surge in use around 2015. With this increasing use, the number of interactions between people, dogs, and cars began to increase. Problems included: blockage of emergency vehicles, dog fights, dogs attacking residents and visitors, dogs attacking horses, cars hitting mailboxes and walls, and in one case an owner's dog was killed in its driveway by a car turning around. By 2016, there were days when there were over 25 cars parked at one time on the road, and over 20,000 dogs per year passing through private and residential property.

The implementation of a leashing requirement, combined with coyote attacks on unleashed dogs, has caused the use by dog walkers to decline. The result is that there is no longer a parking overload problem at the access points. The current parking capacity at the different sites is much larger than the current demand. For example, the 17 car capacity at Chamberlin Woods rarely has more than two cars, and often is empty.

Most nature preserves exclude dogs, and the minority that do allow dogs almost universally require they be leashed. The owners of Estabrook Woods have always been committed to managing the Woods as a nature preserve, but had not established any rules about dogs before 2016 because the use of the Woods for dog walking was minimal.

However, around 2014 to 2016 Estabrook was promoted on the internet as a dog park, because it had no published rules regarding dogs. At the same time rules and enforcement regarding off-leash dogs were becoming increasingly strict in surrounding communities. The number of dogs brought to the Woods increased greatly. The dog counts passing through the Estabrook Road access alone went from around 2 per day to over 18,000 a year.

The owners of the Woods all agree that this level of use is incompatible with a nature preserve. Therefore, the private owners have adopted the rule that dogs must be on leash throughout most of Estabrook Woods. About a year later, the Town adopted the same rule on the Town land in another part of Estabrook, known as Punkatasset, which comprises about 7% of the Woods.

Certain dog walkers have objected to this rule. They have questioned the rights of private landowners to establish rules on private land. They first opposed, and then subsequently attempted to reverse the leash requirements on the Town land. They contend that Estabrook Woods is not a nature preserve. They have dismissed and denied the science showing how dogs impact wildlife. Some have said in public meeting that they do not- and will not- follow the posted rules. Unfortunately, extremists have leveled personal attacks against Estabrook Woods property owners and the Town's Natural Resources Commission.

According to the Department of the Interior, dogs are prohibited on many National Park trails because:

"-Dogs can carry disease into the park's wildlife populations.

-Dogs can chase and threaten wildlife, scaring birds and other animals away from nesting, feeding, and resting sites. Birds may abandon nests when they perceive threats or are disturbed. The scent left behind by a dog can signal the presence of a predator, disrupting or altering the behavior of park wildlife. Small animals may hide in their burrow the entire day after smelling a dog and may not venture out to feed.

-Dogs bark and disturb the quiet of the wilderness. Unfamiliar sights, sounds, and smells can disturb even the calmest, friendliest, and best-trained dog, causing them to behave unpredictably or bark excessively.

-Pets may become prey for larger predators such as coyotes and bears. In addition, if your dog disturbs and enrages a bear, it may lead the angry bear directly to you. Dogs can also encounter insects that bite and transmit disease and plants that are poisonous or full of painful thorns and burrs.

-Many people, especially children, are frightened by dogs, even small ones. Uncontrolled dogs can present a danger to other visitors."

There are also direct confrontations with wildlife. In Estabrook Woods in one year there were at least 6 cases of dogs involved in fighting encounters with coyotes. Such coyote attacks normally occur when a coyote den is threatened.

Dog walkers contend that there is no data showing there are dog problems on conservation land in places like Concord. However, a study at Great Meadows National Wildlife Preserve did find a major impact when the decision was made to prohibit dogs at Great Meadows. The Trustees of Reservations recently announced it "has undergone a detailed, multi-year assessment, which has shown that increased visitation by people and dogs has generated considerable impact on certain habitats and overall visitor enjoyment." Furthermore, the Commonwealth of Massachusetts recently completed a multi-year study on this subject, in relation to State-owned conservation lands. The results of that study were presented to the public on Feb 6, 2018. The state study found that there were significant impacts of unleashed dogs on wildlife. The state study further found that unleashed dogs were responsible for significant safety problems related to visitors. In fact, they found that many people had negative encounters and were afraid to enter state conservation lands due to the threat of loose dogs, particularly people with children, people with medical conditions, and the elderly. The results of this study were sufficiently compelling such that the State, on March 14, 2018, instituted a new regulation that dogs must be leashed on all 220,000 acres of State conservation lands.

The Town in October of 2017 filed a lawsuit against Harvard University and four property owners in the Estabrook Woods. The Town seeks a declaration from the court that the Estabrook Trail at the end of Estabrook Road has unlimited public access which the owners cannot regulate. The Town admitted at a preliminary hearing on January 31, 2018 that the Trail is private land.

Much to the confusion of the defendants and their fellow citizens, the Town has changed its story multiple times regarding what the lawsuit is about.

They first said the land is not private, then reversed and said the land is private.

They claimed to have documentation showing the Trail to be an old public way, and then reversed and said that such documentation may be "lost or not in their possession".

They claimed the Trail was legally discontinued under one law, and then reversed and agreed that it was actually discontinued under a different law.

They said the Town owned the Trail, and then later reversed and agreed the Trail is privately owned.

They claimed that the replaced gate at the entrance to the Trail was unlawful, but then later reversed and agreed that plans for the gate had been provided a year in advance to the Town Manager, the Police, the Planning Department, and the Engineering Department with no concerns expressed. At trial, the Town's own expert testified that the road was gated in 1866.

They claimed that the replaced gate at the entrance to the Trail was locked and prevented emergency access, but then later admitted that public safety officials had inspected the gate and found it unlocked and provided sufficient access for safety equipment.

They said the Trail was a public street, and then later reversed and said the Trail is privately owned.

They claimed that the Estabrook Trail was a Town road in the 1600s, but their own experts later refuted this and said it did not exist then.

They said in the Town Manager's report of 2017 that they filed the lawsuit because "signs were installed indicating that the road is "private property"", but then later reversed and admitted the Trail is privately owned.

They claimed the Town only abandoned maintenance of the Trail in 1932 but that the public retains the right to use it as a road, and then later provided documentation showing that the Town granted the landowner's petition to close the Trail to the public.

They claimed that the discontinuance of the Trail in 1932 preserved public rights of use, but then later admitted they had not checked other identically discontinued roads to discover that they are not open to the public but are variously obliterated, gated, and posted "no trespassing".

They claimed that the landowners would not negotiate, and later reversed and said that the landowners did negotiate but that the negotiations were not successful.

The Town, in its lawsuit, suggests that the Trail was once a Town public way, and that it may retain some public access rights despite being discontinued in 1932. The Town has been unable to produce any documentation that the Trail was ever created as a Town public way as required under the law. The Town’s own records all show Estabrook Road ending where the pavement ends. Despite the absence of the legally required documentation, the Town’s suit asks the court to award the Town a declaration that the Trail be recognized as a public road, based on a single documented case of repairing damage of the Trail from logging operations by the owners in the late 1800s, combined with an argument that essentially says: “It must have been a public way.” The Town has argued that the appropriate documentation to support their claims “may not be in their possession”, despite that fact that the Town archives have uninterrupted records of roads going back to the mid 1600s including the records of all other early roads in the Town. No court has ever found any old trail or road to be a public way under similar circumstances.

Even if it were to demonstrate the Trail was once a Town public way, the Town must prove public rights were retained after 1932. The Town asks the court to find that the Town did not discontinue the Trail in 1932, despite the lawfully documented adjudication under the discontinuance laws of that time. It is difficult for the Town to argue this since the Town itself has treated all other similarly discontinued roads as private property without exception. The Town is attempting to reinterpret an old law, after 85 years, to mean something completely new that past officials across the Commonwealth have never asserted before on any other road. If the court were to agree with the Town's position, then hundreds, and possibly thousands, owners of properties in Massachusetts would suddenly find that ancient discontinued roads gave rise to new public easements through their properties (including properties in Concord). No old trail or road that was discontinued in the manner that Estabrook Trail was discontinued has ever been found by a court to be public.

The Town at one time suggested "long-standing public use" as the basis for the Town to ask the court to grant a permanent easement for use of the Trail. (see "Can people gain rights by long use?" below). However, the "long standing use" the Town asserted related to recreational use. Courts have consistently found that frequent use of a woodland trail by hunters, walkers, nature viewers, and skiers, even when documented, cannot be used to claim a prescriptive easement for the public. (Appeals Court: Rivers v Warwick 1994; Cowls v Woicekoski 1979). The Town eventually recognized the defects of this claim abandoned it in October of 2019.

The landowners, in their defense, show that the road was never made a public way, the Concord Road Commissioners approved a petition from the landowners to discontinue the road, the Town successfully petitioned the County to discontinue the road for good measure, and that the town has not treated it as a public way since the 1932 discontinuance. The landowners also show that all such roads around the Commonwealth have been treated as private property, and assert that the Town cannot now, after 85 years, reverse the intent and actions of 85 years of Massachusetts officials. The landowners also present a history of case law showing that the Town is not entitled to take control of their Trail based on the Town’s claims. The landowners further claim that if the Town's new interpretation of the old discontinuance law were to be accepted, then 85 owner's properties in Concord , and more than 1,000 around the Commonwealth, would suddenly have unrecorded public easements through them.

The court filings are extensive but the core of the case are the requests by the Town and by the defendants for judgment by the court.

Given the documented history of the Trail, its ownership, and the consistent actions taken by Town officials for 85 years, the landowners believe that the Town's case is frivolous and insincerely motivated.

The Town has said that they recognize the land is private and only want to control the Trail that leads into it. Many would view this position as analogous to someone saying: "we realize your home is private but we want to take control of your front door."

The Trail has only one purpose: to access private land.

In short: The Town does not have an easement on the Trail, and they are asking the court to give them an easement into private land. There is no precedent for this, as no court has ever issued an easement under such circumstances. The landowners own the Trail, and are asking the court affirm their rights to their private land.

Yes. The property owners along the Estabrook Trail in 1932 petitioned the town that they wanted to “close” the trail to the public, which they said was being used by “Picnickers” who they felt created a fire hazard and whom sought to exclude from their land. At that time, there was no systematic catalog of old roads (the cataloging of old records was done during the depression), so there was uncertainty regarding whether the Trail was a public way. To eliminate this uncertainty, and to confirm the right of the owners to gate the trail shut, the owners petitioned to close it.

The Trail was discontinued under a Mass General Law Chapter 82, Section 32A titled "Discontinuance of Certain Ways as Public Ways". The consequence of discontinuance is explained by the Massachusetts Executive Office of Environmental Affairs in their handbook titled Rights to the Sea: "Following a discontinuance, the publics easement of passage disappears and the land beneath the easement returns to the original landowner, free of easement."

Town officials granted the landowner's petition to close the Trail, and then formally submitted a petition to the county to order the discontinuance of the Trail. The Town has recently put forth a theory that the Town was seeking only to eliminate their maintenance obligation in 1932, but the record of minutes of the road commissioners of 1932 do not support this theory; indeed the issue of maintenance was not even discussed when the petition to close the road to the public was granted. A public hearing was subsequently held to consider the discontinuance of the Trail, and the record shows that not one person objected to the closing of the Trail or the intention to post it to "Warn the Public Against Entering". This petition to the county for discontinuance was granted (Middlesex County Commissioners, Docket #1752). The owners then gated the Trail closed, and it has been gated closed ever since. Currently, however, the owners have permitted public recreational use.

The 1932 order issued by the County was unambiguous. The county ordered that the way cease to be a public way and was now private. The meaning of this "discontinuance as a public way" is clearly established in Massachusetts law: "Discontinuing a public way has serious consequences...a town loses all rights to that way including any easements it once held." (Meudt v Hancock, 2008)

Regarding the process used to discontinue the Trail, the Concord lawyer Samuel Hoar, who was former assistant district attorney, Concord Selectman, Town Moderator, and founding partner of Goodwin, Proctor, and Hoar, informed the Town that:

“The suggested proceeding would definitely determine that the road was a private way and would have the effect of abandoning any rights that the Town has over the way if there are any such rights.”

The County adjudicated the Trail to be formally discontinued, and instructed it to be posted to "Warn the public against entering thereon." There are many other old roads in the Commonwealth that were discontinued under Section 32A, all of which became private property with no public access. Indeed, many of such trails around Massachusetts have been obliterated or had homes built right on top of them.

Whatever the original status of the road was, it is an agreed fact that in 1932 it was discontinued under Section 32A. Therefore, the road has the same status and rights as other roads discontinued around the Commonwealth using the same statute. There were more than 100 roads discontinued across the various counties under the same statute. The records of these roads show in all cases that the intent was to discontinue the public way and make the road private. In no case is there any record of a public easement on the discontinued way. The discontinued roads today are uniformly treated around the Commonwealth as discontinued and have been variously obliterated by overgrowth, obliterated by subdivisions, gated, built-over, and/or posted "no trespassing" The Town of North Andover in Essex County, together twith Franklin County, filed an appeal brief warning the Appeals Court that all such roads have always been understood to be discontinued and the problems, costs, and impossibility of re-opening them is unacceptable to the municipalities.

In Concord are four other roads/trails that have a similar history and were discontinued around the same time and using the same Section 32A statute. Three parts of these four old roads are now private driveways; four sections are posted “no trespassing”; two sections are blocked by fences; one section has been redeveloped as a parking lot; and in two locations houses were built directly on top of the old road. These four old roads were discontinued the same way as Estabrook Trail and, for decades, have all been treated as private property by the owners and by the Town, with no public access rights. Some of the postings and gates against entry were placed by the Town itself. The Concord Planning Board has described such roads as a "discontinued public right-of-way". The County specifically describes such ways as discontinued on official plans. In fact, Town administrators have testified under oath that such trails were "neither maintained nor used as a public way."

The adjacent Town of Acton discontinued 12 roads using Section 32A, and in all cases the old roads have reverted to private land and have been built over, used as private driveways, and/or posted “no trespassing.” In the lone case in Acton where there is a limited public right of ceremonial purposes on an old trail, that access was obtained by the Boy Scouts by respectfully asking the landowner for permission. A complete review of all the roads similarly discontinued in Middlesex and other counties found in every case they are currently wholly private, blocked, used as private driveways, posted against entry, obliterated by growth, and/or obliterated by subsequent development. In Stow there is actually an office building built directly on such a discontinued Road.

The Town inititate the lawsuit, without warning, in 2017. The residential property owners including Harvard filed a response to the lawsuit with counterclaims. Over 13,000 documents were produced in discovery. At a two-week trial evidence and testimony was introduced. The final written arguments were submitted in October of 2021.

The Land Court issued a ruling in favor of the town in 2022. The Court ruled in three parts: 1) that the road was a made public way and the records were lost; 2) that even if the road was not a public way, the use of the road by owners along it for logging and the use of 4 identified people including Henry Thoreau in the 1800s for walking made it a public way; and 3) that although the road was discontinued in 1932, that particular law establishes a public right of way on all roads so-discontinued.

The defendants have filed an appeal which will be heard in March 2024. The owners argument on appeal is that 1) Concord records are remarkably complete back to the 1600s and there is no legal basis to speculate that records were lost; 2) the use of the road by the owners along it, or the use for a few recreational walkers who never even record traversing the entire length of road, are not sufficient under the law to make a trail into a public way; 3) that the court erred when it created a novel interpretation of the early discontinuance law, Chapter 82 Section 32A, which ignored and will upend the status of thousands of properties around the Commonwealth, and 4) The Court's order that the owners remove the gate on the entrance to the road is in direct conflict with state law Chapter 86 Secton 5, which specifically provides that owners on a private way may gate it closed.

What has changed is the Town leadership's position on private open space. For decades the Town and private landowners worked in partnership to protect the Estabrook Woods and its habitat. In 1987, the Town's Long Range Plan provided the following guidance regarding trails:

"...a large portion of the mileage exists on privately owned land, and many of these landowners recoil at the notion of attracting more public crossings. In these situations, a delicate balance exists between acceptable levels of usage and imposition... it is not an objective to promote these resources for non-residents.."

In 1991, Concord's Open Space Plan expressed concern regarding managing increasing impacts:

"The Town should also continue to be alert to problems caused by recreational use of Estabrook Country... An effort should be made to control recreational use by not greatly expanding accessibility and parking."

However, in 2016, a number of citizens, including some Select Board members, began to press for changes to increase access to and use of private and public conservation lands as dog parks, as a priority over habitat protection. As a result, the Select Board adopted an administrative policy to maximize parking access to open space, against the stated concerns of the Concord Land Conservation Trust and private landowners.

The controversy about rights began in mid 2016. Prior to that time, for more than 85 years, both the Town and the owners understood that the trail was private. The Town communicated this to landowners, to the public, and in various Town documents. The Town had told property owners in the Woods they could not develop their land because the trail was not a public way. The trail was listed as discontinued in all public records.

As late as June, of 2016, the Town Manager reiterated the understanding that the Trail was private at a public meeting by saying:

“The Town abandoned the unpaved portion of Estabrook Road in 1932, and typically the public rights to use the road are abandoned at that time to the abutters. There is no publicly owned land in that general area. So there is no documented right of access.”

However, in August of 2016 the Town reversed its long-stated view of the private nature of the Trail, and expressed a completely new opinion that the Town or the public might have rights for access on the Trail. Although the details underlying this new opinion have never been made public, the Town Manager has been quoted in the paper as saying:

“The Town only abandoned their obligation to maintain the road.”
“The public controls the access.”
“It’s the Town’s view that the land is not private.”

These statements inflamed public opinion, but are not correct. It took the Town a year to correct these statements, by saying in October of 2018 that:

“The Town makes absolutely no claim of ownership of the Trail.”
“The Town is in no way making any claim on the abutting private lands.”

The Trail is private and the landowners have allowed public use by permission, subject to certain conditions. The Town filed a lawsuit in October of 2017 seeking to change this and take rights on the Trail away from Harvard University and four resident landowners.

There were two factors driving this lawsuit: First, some citizens strongly objected to the posting by the landowners of leash requirements for dogs on private lands, and sought to have the Town overturn those leash requirements. Second, rapidly growing demand of users of the Woods was overloading the limited available parking and some citizens demanded that the Town create more parking to access private lands. Circumstances have changed since the start of this lawsuit that have rendered these issues moot:

The Town settled the lawsuit with the largest landowner defendant, Harvard, with an agreement that not only codifies that dogs must be on leash, but commits the Town to help Harvard enforce that rule. When Harvard’s land is combined with the Town’s land at Punkatasset that also requires leashes, this effectively makes the leash requirement in Estabrook Woods permanent, eliminating what was the largest political driver of the lawsuit.

Furthermore, since the use of the Woods as an off-leash dog park represented approximately 80% of users, the leash requirements have dramatically reduced the demand for parking, and almost eliminated out-of-town users that comprised almost 50% of visitors. This has totally eliminated the need for any additional parking; in fact the NRC reported last year to the Select Board that planned parking additions at Punkatasset were no longer needed.

The existence of the lawsuit caused a number of private landowners to see that the Town has changed its approach to public-private partnerships, and that the permission these landowners had granted on private trails in the past could make them subjects of lawsuits. As a result, almost three miles of trails have been closed to the public. More are likely to close, including trails at locations outside of the Estabrook Woods. These trail closures have reduced trail options and reduced visitation to the Woods.

The desire of some citizens to force landowners to accept off-leash dogs and to have the Town create more parking have therefore both become moot by circumstances. If the Town were to prevail it would not result in off-leash dogs being permitted, nor would it solve any parking problem.

Town Officials have tried to say in vague terms that this is about “access” to Estabrook Woods. According the Town’s Estabrook Woods Access Committee, Estabrook Woods has 17 entrances, including three in Concord that have deeded public access rights. Two of those, Punkatasset and Chamberlin Woods, together have public parking for 25 cars. When the Carlisle parking is included, there are 39 public parking spaces serving the Estabrook Woods. On the average day, at a given time during the daytime, only THREE of all of those 39 parking spaces are used at once. In fact, when the Select Board recently considered improving and expanding parking at Punkatasset, the NRC told them that there was NO NEED for any additional parking because the current parking was enough. Furthermore, the Town already owns additional land in Estabrook Woods at Monument Farm Road, with a deeded access trail, that is essentially unused because the Town has not provided any parking at its land there. Not only does the Town already have more than enough access, but it even owns additional access it does not even use! For a tiny fraction of what the Town is investing in this suit they could significantly improve quality and safety of the parking at the Town’s own land, and make necessary trail improvements on public lands and trails all around Concord.

It is extremely unusual for a Town to file such a lawsuit against its own citizens. In fact, the Massachusetts Executive Office of Environmental Affairs in 1999 created a guidance document regarding public access that specifically recommends against such lawsuits:

“Bringing a lawsuit to assert public rights should be considered the option of absolute last resort, due to the expense, time required and uncertainty of outcome. Before choosing a legal fight, opportunities for negotiated agreement should be seriously pursued for they are likely to produce as much gain at a lower price than a prolonged court battle… Consider the possible chilling effect a legal action may have on other landowners in the community, especially if the committee plans to assert a claim of prescriptive rights or public rights by dedication or custom. Following the assertion of such a claim, landowners may be less willing to allow informal use of their properties in fear that their generosity might ripen into a permanent public easement.”

What is remarkable in this case is that the landowners offered the Town a license for the public to use the trail, or an agreement to provide for public use, but the Town declined to pursue those options, broke off negotiations with the landowners in October of 2016 without explanation, and never expressed any interest in further discussions on the issue before approaching ONE of the landowners immediately prior to initiating a lawsuit a year later in October of 2017. Most of the landowner defendants were never contacted at all by the Town prior to the lawsuit. It is almost unheard of for a Town to sue landowners without ever even talking to them about the issues beforehand.

Another fact that makes this lawsuit extremely unusual is that there is no Town land along the Trail. Almost always these types of conflicts are about access to Town or Federal land. For the Town to seek access rights on a Trail that leads only into private land makes this situation unique.

This lawsuit has already had the predicted chilling effect on landowners in Concord and surrounding Towns, with many private trails being closed to the public out of fear that allowing access is now a liability- and can result in expensive, stressful, and debilitating lawsuits.

Yes. Individuals can petition the court to gain a right to use a trail, which is called a “prescriptive easement.”

The Concord Town Manager is quoted in the Concord Journal, Jun 14, 2016 about this:

"Whelan said the town has not identified any written rights for the public to use the road; however, when something has been used for many years, one legal school of thought is that the public has acquired the rights to use it by prescription. “It’s a question of whether the public has acquired the right to use it by having used it consistently since 1932,” Whelan said. “ The landowners attorney said the public has not, and our attorneys are looking into it.”

However, such rights are for individuals, not the public, and each individual must demonstrate 20 years of continuous, adverse, and unpermitted use. The reason why "the public" cannot gain prescriptive rights is explained in the Chicago Law Review:

"When the adverse use was simply that of an individual, the rightful owner might prevent it by bringing an action to oust the interloper; but for use by the public at large, he had no distinct defendant to sue. Moreover, it is burdensome on an owner to suppose that prescriptive use by perhaps a few people can translate into a claim in the public at large. As a result, the general public was (and still is) usually held to be unable to claim land by analogy to adverse possession: public trespass can hardly imply an owner's grant, because the owner cannot rebut the "grant" which may turn out to be considerably larger than any use of which he should have been aware."

Since the owners have specifically permitted the use of the Trail, any recent use of the Trail is not unpermitted and cannot be used to meet the requirements to gain an easement from the courts. Again, this method of gaining an easement is for individuals, and not for “the public.” Such a right is in the form of a documented easement, which must be obtained from a court and registered on the property deed. There are currently no such easements for the use of Estabrook Trail or for any other use within Estabrook Woods.

Courts have repeatedly found that a Town cannot represent members of public seeking access rights by prescription. A Town can only try to claim a municipal right on the Trail based on long municipal use. The courts have found that members of the public are not representatives or agents of a municipality, and their actions cannot be the basis for a claim by a Town. To gain a municipal easement, the Town would need to demonstrate long-standing maintenance of the Trail as a public road, use for utilities, and use for municipal purposes. However, the Town has no land on the Trail, has not maintained the Trail, and has no municipal functions or utilities on the Trail. In fact, the Trail has been gated shut by the owners since 1932, and the Town admits that no known municipal activity has occurred on it since then. The Town's historic actions meet none of the criteria for gaining an easement. There is currently no such Town easement for the use of the Trail. No Town has ever been awarded such an easement in a situation like the Estabrook Trail.

In October of 2019 the Town dropped the claim that the public is entitled to the Trail due to "long standing public use."

September of 2016 was the first time the Town asserted any claims about the Trail. Before then, for at least 85 years, the Town had, through its actions and statements, agreed that the Trail was private land, and the landowners also understood that it was private.

The Town's first public threats of legal action were reported in the Concord Journal in an article dated June 16, 2016 titled: "Woods Access Could End Up in Court" where the Town Manager said the Town might seek a prescriptive easement from the court.

In 2016, the landowners offered a license for public use of the Trail, which the Town declined but indicated they would instead prefer to implement under a memorandum of agreement (MOA). After an agreement was negotiated, the Town Counsel advised the Select Board not to accept it and to break off negotiations. The Town Counsel, on October 31, 2016, wrote to the landowner's counsel:

“We have received a copy of your letter and draft MOA pertaining to the terminus of Estabrook Way. Concord Town officials appreciate your clients’ willingness to negotiate and come to a mutually agreeable resolution of this dispute, but they are not inclined to enter into an MOA at this time.”

This letter does not object to a specific MOA, but instead says the Town is not even interested in any negotiation process. After this abrupt termination of negotiations by the Town, different landowners wrote letters to the Select Board asking for clarifications of the situation and expressing a willingness to discuss the matter further, but received no response.

The Town Manager notified one of the landowners that the Town was considering establishing regulations for use of the private trail:

"I believe it will fall to the Select Board to issue regulations for controlling activities in that area."

The Town never presented any evidence suggesting they had the right to set rules on private land. The Town Manager verbally offered to consider the landowners concerns when establishing such Town-imposed regulations, but the landowners and their attorneys did not agree that the Town had any rights to set rules on their lands, and so on December 22, 2016 did not agree to discussing any Town-imposed rules on their lands. The landowners at that time were still prepared to discuss an agreement regarding their land, but would not accept the Town taking control of their land without any documented right.

After breaking off negotiations, the Town did not indicate any interest in renewing discussions; but the Town filed a letter with the following statement to the Supervisor of Records of the Commonwealth on July 26, 2017:

“Producing privileged records concerning this issue would prejudice the Town’s position in litigation likely to be joined in the immediate future.”

This was the second time the Town had made a public threat of a lawsuit.

A few days before the Town filed its lawsuit, a Select Board member contacted a landowner and warned him of an impending legal action by the Town, and asked if there was an opportunity to mediate this issue. The landowner agreed to resume negotiations. They agreed to exchange legal positions, which was done in the form of confidential settlement documents. The last communication before the lawsuit was filed was a landowner responding to a question from a Select Board member about whether the landowners were planning to engage in a facilitated or mediated discussion, which was answered:

"Yes, our counsel is going to contact Anderson Kreiger to open this discussion. I believe in the next few days." (note: Anderson Kreiger is the Town's Counsel).

However, before those negotiations started, the Town sued the landowners.

Although the Town has tried to claim that the landowners would not negotiate as a justification for the lawsuit, most of the landowners had never even been contacted by the Town at all prior to the lawsuit. In fact, the only time the Town had made a statement about their view of landowners' willingness to negotiate prior to the lawsuit was to say that:

“Concord Town officials appreciate your clients’ willingness to negotiate and come to a mutually agreeable resolution of this dispute, but they are not inclined to enter into an MOA at this time.”

The Town has repeatedly tried to claim that the landowners "threatened" the Town with a lawsuit. What lawsuit? The landowners simply said, a few days before they were sued by the Town, that if the Town was not willing to negotiate, that the landowners might need to ask the court to affirm their property rights. A court ruling would be needed to stop the dissemination of misinformation by Town officials that has led to incorrect assumptions and false claims made by some members of the public, which in turn was causing verbal abuse of the landowner's families and vandalism of their property.

Up to the time the Town initiated the lawsuit, the landowners had been threatened multiple times with a lawsuit; in response, certain landowners indicated that they would not hesitate to protect their rights in the face of such threats.

Rather than working with the landowners, the Town chose to sue to attempt to gain rights that the Town does not have. Most recently, the Town has backed away from many of their earlier claims and now says that they are seeking no changes to the Trail, but just to have access by claim of right rather than by permission of the owners. The Town has not explained why the permission that has been provided to the public by Harvard University and private landowners for decades is now somehow inadequate.

Five months after the lawsuit was filed, the parties agreed to enter non-binding mediation. Mediation is a confidential process and, accordingly, cannot be described in detail. Suffice it to say, the Town continued to be evasive as to the basis for its claims and settlement discussions proved unproductive.

The Town has already spent over $2,000,000 on this lawsuit. If the landowners are awarded attorney's fees, the cost to taxpayers could grow to much larger. By way of comparison, a lawsuit about access rights in Marshfield, involving Rexhame Beach, went on for 18 years.

Lawsuits regarding rights regarding ways on land are typically not expensive because such rights are documented in deed instruments. This lawsuit is unusual because no such documents were found. Instead the Town has provided various reasons why the court should consider that the Estabrook Trail was a public way for which the records were lost. In creating this theory, the Town has changed the basis of the case nine times over the course of four years. Each change by the Town essentially restarted the case, requiring new evidence and new legal analysis.

The Town originally told the court it intended to move for quick summary judgment in spring of 2019. However, the Town was unable to find evidence to support their position, and has repeatedly retracted claims and even retracted the key part of their expert testimony. The Town has repeatedly changed the claimed basis for the case, greatly extending the case. Over 13,000 documents have been produced. The Town hired an expensive expert who wrote a false report and retracted it a year later. The Town claimed it had over 30 witnesses that the way was currently being used without permission of the owners, a claim which the Town retracted after two years. The Town forced the defense to depose many Town witnesses and then claimed they were all irrelevant. The Town deposed many of the owners over a long period and then argued their testimony to be irrelevant. Landowners proposed a settlement to the Town which the Town agreed to but only with Harvard, and then the Town reneged on that settlement and caused the court to order Harvard back into the case. The Town recently claimed that the way must have been a Town way but the records were lost. All of these changes by the Town greatly expanded the cost of the litigation for the taxpayers and for the defendants.

It is not clear what citizens might be expected to gain from this lawsuit. The cost of this lawsuit is already much greater than the funds it would have taken to improve parking and trails at all of the Town's public lands including Punkatasset; in fact, the Town Manager reported that no funds for Punkatasset are now available. The Select Board has recently heard that no additional parking is needed for Estabrook Woods. There are many public access points into the Estabrook Woods, so it is confusing why the Town seeks control of a private entrance. The Town has already agreed that the current rules on the Trail are appropriate.

No. The main road north from the North Bridge was called Groton Road (now Lowell Road), which was officially created in 1699. Monument Street was created in 1734, and these two roads have always been the main roads to Carlisle and to the north. In 1754, the section of Estabrook Road that is currently paved first shows on a map, but only went as far as the end of the current paved road. The official Concord map of roads from 1794 shows both Lowell Road and Monument Street but does not show Estabrook Road or the Trail. The Estabrook Trail first shows on a map in 1830, nearly 100 years after Lowell Road and Monument Street were established. Not long after that time, the Trail was described by Town documents only as a logging road. In 1845, just a few years after the first records of the Trail, Ellery Channing already described the Estabrook Trail as “the deserted road.” By 1859, Thoreau wrote that the Trail was “not accepted by the Town or the traveling world”, and was “undiscoverable to the uninitiated.” Consistent with these descriptions, Town officials noted in 1891 that the Trail was “little more than ruts though a piece of woodland.” By 1932, Town officials said of the Trail that it “has for a long period ceased to be in general public use.” These are certainly not descriptions of a main road.

The Town's own records, therefore, establish that Estabrook Trail was just an old logging path used by the landowners, rather than a main road to Carlisle.

No. The public has had permission over the past few decades to use the woods. There are limited, documented public rights to certain parcels in Estabrook Woods, most prominently including the Town land at Punkatasset; but those parcels are the exception. There are no public rights to access the Woods via Estabrook Trail through the residential properties at Estabrook Road. The Town has embarked on a multiple-years’ quest to prove otherwise, and has not come up with any documents to support its theory.

It may be the case that people like Thoreau, Emerson, and Ellery Channing walked in the Woods in the mid 1800s; they likewise traversed many other private lands in Concord. Those recreational walks certainly do not transform private lands into public lands.

Until the current controversy, the only historic record of a citizen recording their understanding of rights on the Estabrook Trail was by Mary Sherwood, who wrote: “The year being about 1958 or 1959…One day I decided I wanted to walk in along the Estabrook Trail… I knew an Emerson lived in the old house at the beginning of the trail and I felt I shouldn’t go in there without permission.”

It is important to remember that a "right" regarding land is something that is documented by a legal instrument. In other words, there must be a document backing up a claim of "right" regarding land. After four years, no document has been produced by the Town or anyone documenting any rights to access the privately owned Trail at the end of Estabrook Road. So when someone claims a "long-standing right" to land without a legal document to support that claim, they are mistaken.

The public has had long-standing permission to use sections of the Woods, but not a right. A right to use land must be provided by documentation of that right, and there is no such documented right.

No. Some people have suggested that unlimited public access should be provided to the private land of Estabrook Woods because “it has been used by the general public for centuries.” That is not true and no basis in fact has been provided for these claims.

After two years of research, the Town and the Estabrook landowners have collected all known references to historic use of the Estabrook Trail. Reviewing these references, the following conclusions can be drawn regarding the history of visitation of the Woods and the Estabrook Trail:

There is no record of anyone using the Estabrook Trail prior to 1830. The evidence shows that the Trail did not even exist before around 1770. The Trail is not present on any map prior to 1830.

During the 1800s, there are records of a group of friends of the landowners who visited in the Estabrook Woods for nature observation, including Thoreau, Channing, Emerson, Sanborn, and Ellen Tucker Emerson. These people consistently describe the Trail as “deserted”, “uninhabited”, and “not accepted by the Town or the traveling world.” These visits are by friends and neighbors and not by the general public.

After two years of research, the Town has only found a single case of a member of the general public using the Estabrook Trail during all of the 1800s, and that person entered and left via Monument Street. All other recorded visits were by the owners and their friends.

The Town’s records from the 1800s describe the Trail as a logging road used by the property owners.

The records of visitation to the Woods by the owners and their friends during the 1800s describe excursions around many different locations in the Woods, often not on the Trail, and treat the Estabrook Trail like any other trail in the Woods.

The Estabrook Trail has been gated since 1866, according to the Town's expert at Trial.

In the 20th century, no records of use by the general public were found for the period from 1900 to 1958. From 1932 until about 1970, and then during a time in the 1980s, the owners of the private entrance at Estabrook Road prohibited visitors (other than friends and neighbors), and the public entrance to Estabrook Woods was at Punkatasset.

When it was publicly announced and advertised in 1932 that the Trail was to be discontinued and to be posted that “the public is warned against entering” the public apparently did not care; the records say there was not a single objection at the public hearing.

The only record of any description of the issue of permission regarding the Trail prior to 2016 was from a person in 1958 who stated they believed they required permission to use the Trail entrance.

Stedman Buttrick, the owner of much of the woods prior to the acquisition by Harvard, said “People walk through the Estabrook Woods now. They never used to.”

From the founding of Concord until Harvard’s acquisition of much of the Estabrook Woods (when the public was granted permission to walk on Harvard's part of the Estabrook Woods), there are only two records of visits to the Woods by people from the general public who were not friends or neighbors of the landowners, one in 1897 and one in 1958. In the first case, Edwin Bacon describes walking in the Woods on parts of the Trail and across many parcels in the Woods (see map). It is notable that Mr. Bacon did not enter or leave the Woods via Estabrook Road but rather by Monument Street. In the second case, Ms. Mary Sherwood asks permission before using the Estabrook Road access to the Estabrook Trail:

“The year being about 1958 or 1959…One day I decided I wanted to walk in along the Estabrook Trail… I knew an Emerson lived in the old house at the beginning of the trail and I felt I shouldn’t go in there without permission.”

Taken together, the historical record does not support the recently invented claims by some of “continuous use of the Trail by the general public for centuries”. After years of research by the Town and the landowners, the record shows only sporadic use of the Trail, primarily by the owners, their friends, and neighbors, until just recently, when public use slowly began to increase following Harvard’s grant of permission to use their part of the woods around 1966. In fact, the current volume of use, which many of the landowners believe is not compatible with the protection of their land as a nature preserve, has only recently occured in the last few years.

No. The primary source documents, from Drake’s 1897 History of Middlesex County, show that the Minute Men from Carlisle (believed to be around 19 in number), came from Carlisle Center to Hildreth's Corner- which is at the intersection of what are now called Lowell Road and Barrett's Mill Road. That path would have been down Lowell Rd. According to tradition, some men joined the contingent along the way as they marched; these men are known to have lived on Lowell Road, and not on Estabrook Road. If the Minute Men had come down Estabrook Trail, they would have already been within sight of the bridge and would have neeed to backtrack 2/3 mile out of their way to go to Hildreth's Corner.

The most complete analysis of the Carlisle Minute Men and their march was recently published in the Carlisle Mosquito.

Since the 1970s, Carlisle Minute Man reenactors do walk down the Estabrook Trail each year on April 19th, because it is a safe way for a group to walk from Carlisle; the Trail owners have encouraged this ceremonial use.

No. When the landowners asked the Town to help them because their property was being promoted as a regional dog park, and parking was causing unsafe road conditions, the Town departments responded with help to control the problems.

However, during that period, the Select Board and Town Manager were pressured by a group of citizens to create additional parking on the road; parking which would expand the use of the residential and private conservation land as a dog park. The landowners advised the Town that, while they had for decades permitted the use of their land by neighbors and nature lovers, that they would not allow their homes and their conservation lands to become unsafe and overrun with inappropriate levels of use, or to become a regional dog park; and that they would need to restrict access on their land if parking was increased. Citizens who mistakenly believed the land to be public land exhorted Town officials to act. Town officials then began to threaten a lawsuit. The landowners offered an agreement to allow public use as long as parking was not expanded. The Town originally was open to that agreement but abruptly broke off negotiations in October of 2016 and ultimately sued the landowners.

No. The Town was offered agreements assuring public access to the Estabrook Trail on three different occasions and turned those offers down. For example, the Town Counsel, on October 31, 2016, wrote to the landowners' counsel:

“We have received a copy of your letter and draft MOA pertaining to the terminus of Estabrook Way. Concord Town officials appreciate your clients’ willingness to negotiate and come to a mutually agreeable resolution of this dispute, but they are not inclined to enter into an MOA at this time.”

This letter does not object to a specific MOA, but instead says the Town is not even interested in any negotiation process. Nonetheless, the landowners continued to grant permission for public access, subject to certain limited and posted conditions.

On numerous occasions during the course of 2016 and 2017, the Town indicated that it was exploring a lawsuit against the landowners. The landowners preferred, instead, to reach an agreement with the Town, but the Town would not engage with them on the issue. In October 2017, certain landowners asked the Town if it would commit to further negotiations. Rather than engaging in discussions, the Town initiated a lawsuit.

The Town has suggested that they were somehow forced to sue the landowners. However, e-mail and other documents uncovered as part of the lawsuit show that the Select Board was developing the lawsuit over an extended period, without making the public or the Town's Finance Committee aware of their planned multi-million dollar expenditure. The Town chose to sue the landowners without engaging them in constructive discussion. In fact, most of the defendants were never contacted by the Town at all regarding this issue before suing them out-of-the-blue.

No. There are 8 public access points to the Estabrook Woods, which are Punkatasset, Chamberlin, two access points from Monument Farm Road, Kibbe Place, Malcom Preserve, Prospect Street, and Davis Corridor. In the case of Punkatasset, the Concord Select Board recently heard that there is no longer any need to expand parking there. There are 17 parking spaces at Chamberlin Woods on Lowell Road that are virtually unused. The Town has land on Monument Farm Road with two access trails and has decided to provide no parking there. There are 10 parking spaces at the Malcom Preserve that are virtually unused. And the average number of cars using all of Estabrook at one time during daylight hours is only 3 cars. The current parking access capacity of Estabrook Woods is already greater than the average demand by a factor of 10.