Originally published in the Historic Nantucket, Vol 20, no. 4 (April 1973), p. 19-27
"The Path Along The Bluff"
BY Edouard A. Stackpole
In recent months there has been a considerable study made of roads and rights-of-way outside the perimeter of the town, and of the original layouts and acceptances by the town. Some of these ways have been difficult to trace but one of the most unusual has had the good fortune to have been carefully documented--the "Path Along the Bluff"--that extensive footpath which leads all the way from the village of 'Sconset to Sankaty Head.
Situated as it is at the top of the bluff, always commanding intriguing glimpses of the sea and the heathland on either side, the "Path" curves and dips as it follows the conformation of the bluff, and provides an entirely unique opportunity for a stroll to and from the famed lighthouse at Sankaty.
Undoubtedly, the most unusual feature of the path is that it is public (being owned by the town) and yet that it leads directly across the front yards of all those owning property fronting on the bluff. A number of years ago there was an attempt by one property owner to close that section of the path running through her front lawn, but a decision rendered by the late Judge Davis of the Land Court upheld the town's contention that the "Path" was a public way.
The owners of the adjacent fronting property have, in most cases, had their grounds landscaped, so that the stroller apparently is walking on and across a series of front lawns and gardens, with only a gap in the hedges to locate the actual "Path." In other instances, the path winds through natural terrain and thickets and in one case wanders through a thicket of Scotch broom. For at least half its mile-length, however, the adjoining property owners have actually maintained the path for public use.
But the fact that it does lead into and across private property has not created a nuisance to the owners of the residences along the bluff. This result has been occasioned by a comparably simple fact that those who take advantage of the opportunity to walk the mile-long path are too deeply appreciative of the experience, and it is rare, indeed, that private property is not respected.
The story of the origin of the "Path Along the Bluff" is interesting from both the legal and esthetic viewpoints. It began three quarters of a century ago, when a summer resident of Nantucket, William J. Flagg, decided to invest in a real estate development at the east end of the island.
It was early in 1873 that Mr. Flagg obtained title to a large section of land between 'Sconset and Sankaty, in that portion of the island laid out by the original Proprietors as "Plainfield," bordering on Sesachacha lots. Although the original title gave him ownership to the foot of the bluff itself, the "Proprietors" reserved for themselves the beach land from the foot of the bluff to mean high water. This later became part of the present Codfish Park.
At the same time, or soon after, Mr. Flagg acquired other land at the east end and made plans for dividing the section into house lots. He was careful, however, to run the easterly boundary of these lots at what he no doubt considered a safe distance from the edge of the bluff.
The "Proprietors of the Common and Undivided Land," controlling as they did the outlying land on the island, were petitioned in July, 1883, by Mr. Flagg, for another set-off. The petitioned requested the Proprietors to "...set off to him [Flagg] by metes and bounds, all the common land lying eastward in the Plainfield division, and by the Atlantic house. Also, all lying between these lines and the lines of Squam division, except the Pond."
The Proprietors duly convened to consider this petition, but it was some months later-—December 8, 1883-—that they agreed to "set off the land to said Flagg" at the same time requesting him to "account said Proprietors with an equivalent of ten sheep commons;" also, "to secure to said Proprietors a roadway two rods wide, over and across those portions of land by him reserved as set forth in the quit claim deed from Flagg."
This set-off by the Proprietors is entered in the town records under date of December 8, 1883, although it was decided upon three months previous. The grant reads:
Pursuant to a vote of the Proprietors of the Common and Undivided Lands of the Island of Nantucket, passed Sept. 26, 1883, we have this day set off to William J. Flagg, of the city and State of New York, as follows:
All the common land lying Eastward of the east line of the Plainfield Division and of the South line of said division of Plainfield on the South, and the south line of the Squam division on the North, with the understanding said Flagg will reconvey a certain portion thereof to said Proprietors, to be held in trust by them.
This was signed by Andrew Myrick, William C. Folger and Allen Coffin, as lot-layers.
This "quit claim deed" referred to as given by Flagg is recorded in Book 68 of the town's registry records. It conveys the land requested by the Proprietors, with exceptions, as follows:
First, all the land lying eastward of the land lying eastward of the land conveyed to me and Eliza Flagg, my wife, by deeds respectively of Frederick M. Pitman (see Book 62, Page 464), and James H. Wood (See Book 66, Page 498), and between the extension of the northern boundary line of the said land purchased of Pitman and the southern boundary line purchased of Wood.
Second, all that tract of land lying eastward and between the extension of the northern and southern boundary lines of a certain tract of land conveyed by me and Eliza Flagg to William Ballantyne, by a deed recorded with the town records.
The land hereby released to be forever held in trust by the said Proprietors and their successors for the purpose of roadways and other public uses and purposes and not to be granted or set off by them in severalty to any individual person or persons.
And I also convey to said Proprietors a right-of-way two rods wide along the shore above the high water mark over and across the tracts of land hereinabove excepted and reserved, said right-of-way 2 rods wide being forever secured to said Proprietors notwithstanding any changes that may hereafter take place on the beach affecting the position of said line of high water mark.
There can be little doubt in the established purpose for the land that Flagg reconveyed to the Proprietors, and which that corporate body agreed to guarantee.
It was in the spring of 1892 that Mr. Flagg sold to a Mr. Heath the most northerly of the lots which he had laid out ten years before. It was then recorded for the first time that the easterly boundary was "a foot path along the top of the bank." This lot was later owned by the Grice family.
Mr. Flagg called his real estate development "Sankaty Heights." He was aware of one fact that has not been fully appreciated-—that there had been in existence for many years (perhaps as long as 'Sconset had existed) a footpath along the bluff top, which was used by the villagers and by farmers and fishermen.
Sheep grazed here by the hundreds, sometimes straying down the bluff. Fishermen used the gullies from the village to 'Sachacha Pond to haul up their dories and their catch of fish. The "Path" probably ran all the way along the bluff to the pond. The government's erection of Sankaty Lighthouse in 1849 literally cut the "Path" in half.
Mr. Flagg must have recognized this fact, for on August 1892, he entered the following petition:
The undersigned requests the Proprietors of the Common and Undivided Lands of Nantucket to accept a certain tract of land in that part of Nantucket known as Sankaty Heights, but in perpetual trust nevertheless, for the residents and visitors of Nantucket, and to be used as a foot-path or foot promenade and for no other purpose or purposes whatsoever.
It is provided, however, that the same Proprietors may, when they choose, to convey and transfer the said land in like perpetual trust and for the purpose above-named to the Town of Nantucket or other corporation or body known to control the highways of the Town of Nantucket. William J. Flagg.
On Sept. 1, 1892, Mr. Flagg sold a block of three lots to the late Mary K. Mitchell, and the warranty deed stipulated that the easterly boundary was the footpath along the bank.
On Sept. 3--two days later--the Proprietors voted to accept the tract of land offered by Mr. Flagg as a footpath, and on Sept. 21, 1892, Flagg conveyed the tract to the Proprietors, the tract including that land lying between the easterly tier of lots on the west and the beach upland belonging to said Proprietors on the east, excepting certain lots previously sold and not material to this controversy, the strip of land so conveyed to be held by the Proprietors in trust for the purposes of a footpath along the bank, with authority to convey the land to the town. This deed was recorded in Book 76, Page 342.
On Sept. 22, 1892, Mr. Flagg gave the Mitchell estate a quit-claim deed of all interest in the land lying eastward of the lots theretofore conveyed to her, with the condition that all of the land lying between the east line of said lots and the edge of the bank be kept open for a footpath along the bank; and further reciting :
This deed being subject to my deed of Sept. 21, 1892, conveying the same premises to the Proprietors of the Common and Undivided Lands in Nantucket in trust for uses and purposes therein specified, recorded in Book 4, Page 342.
From the fact that Mr. Flagg had made doubly sure that the "Path" would be preserved it appears that he was cognizant of the long use of the path as a traveled way. His efforts to protect it were further urged by his awareness of its appeal to the summer visitor as a perfect way for a stroll.
The second in the series of legal steps to protect the "Path" came in the next year. The Mitchell estate filed with the Land Court a petition for registration of title to her land, claiming easterly to the ocean. In that case, as in other cases which followed out of this same tract, Judge Davis of the Land Court ruled that title to the strip between the easterly line of the tier lots on the west and the line at the foot of the bank to the east, passed to the Proprietors under said deed of Sept. 21, 1892, and not to the respondent under her deed of Sept. 22, 1892.
Meanwhile, the Mitchell estate had extensively landscaped its grounds, including that portion occupied by the "Path," and had also erected a number of buildings on the beach below.
It was in 1924 that the town voted to seek title to the "Path" through the Land Court. A conference between the late Joseph Kenney, of New Bedford, the town's counsel, and Franklin E. Smith representing the Proprietors, cleared away legal problems, with Mr. Smith suggesting that the Proprietors resign as trustee of the strip (as appointed by Flagg) and that the town be appointed as trustee.
The Proprietors met on May 1, 1925, and voted to give the town a "deed of release to not only the Path, but all the land between the top and bottom of the Bluff along the Path," a distance of some 7,000 feet.
In September, 1924, William S. Swift made a survey for the town, and the plan was accepted by the Proprietors in its release to the town.
When the case came before the Land Court the Mitchell estate claimed the land fronting it (including the Path) by reason of adverse possession.
On December 1, 1929, Judge Davis of the Land Court rendered his decree which legally established the "Path Along the Bluff." In regard to the respondent's claim, he found:
The Sankaty Path is in constant use, and is a matter of importance to all lot owners along the bluff. It is a well-defined path, but, owing to inroads from the sea, needs care and repair. It is in good condition in front of the respondent's house, and her lawn has in no way interfered with the path.
There has been nothing in her care of the bluff that has been in any way adverse to the rights of the Proprietors, or of the Town as their successor in title, nor in any of the said acts of the respondent has there been anything adverse to the purpose of the trust under which title to the strip of land has been held, namely, the maintenance of the path. That portions of it have been used by the respondent for access to the beach and for bathing purposes, or for the housing of her gas engine for lighting her summer residence, has not been inconsistent with a reasonable inference of permission of the part of the Proprietors.
"...There is a decided difference between a user of open tracts of seashore property and similar user in a settled community. Title acquired by adverse possession rests practically on estoppel as a matter of public policy. When an owner has permitted himself to be ousted and another to be in open, notorious and exclusive occupation of his land under a claim of right for a period of twenty years, he has lost the right to assert his title. He does not lose it by a reasonable allowance of the use of a portion thereof by a neighbor and on the while to himself, which does not in any way interfere with his own control of the property for which he himself uses it.
In such case permission is to be inferred; and the more so where title to land is in a public body like the Proprietor. On the facts of this case I find that title by adverse possession has not been acquired against the petitioner and its predecessor.
The Sankaty path runs from the Sankaty Lighthouse southerly to a considerable distance beyond the limits of the Flagg land. The petition and accompanying plan cover the entire path. The southerly boundary line of the Flagg tract, title to which is now in the petitioners, is the northerly line of the public way shown on the filed plan immediately south of the Judkins lot, a little over one-half way down the plan. The northerly line of the strip owned by the petitioners is the southerly line of the respondent Grice which is to be shown on the decree plan.
Many are familiar with Bliss Carmen's poem describing the Path, beginning with the line, "Have you ever heard of 'Sconset," but there is another verse which deserves to be equally well known, as written by Mrs. Abbie Ransom. In part, this reads:
"Have you ever followed the path along the bluff,
When the sky is gray and the sea is rough?
When, shoreward thickening, the fog drifts down
Until homes are the wraiths of a phantom town?
I have followed the path to Sankaty Light,
When the moors were brown and the frost was white,
With the sun a ball on the ocean rim,
Where the Indian Summer breathes with Him,
From the north to the south, a curve is swept,
On the far horizon a soft haze slept.
To the west the moorlands, above the sky,
In all the vast silence, Just God and I."