By Sten Spinella, The Berkshire Eagle
Jul 24, 2025
CHESHIRE — In 2018, shortly after he bought the property, Mark Warner put up a fence and gate to keep his cows. Soon after, someone complained to the town that Warner’s fence and gate had blocked a public right of way.
The town ordered Warner to take down the fence and gate blocking it.
Warner refused, and he hired lawyers. In 2019, attorney Matthew Mozian — who, along with attorney Nicholas Zaricki, is representing Warner — filed suit.
To look at Old West Mountain Road today, Mozian called it “a path through the woods at best.”
“There’s no traffic on it in terms of motorized vehicles. There’s no obvious public road there,” Mozian told The Eagle. “The gates and fences need to remain up there until the town can prove it’s a public road.”
The town had Old West Mountain Road’s roots traced to the late 19th century, which satisfied its position that it is a public way. It says Old West Mountain Road is not a private path, but a 99-foot-wide public corridor established in 1874.
This dispute is now in its sixth year. And the question lingers: Is a public way from the 19th century still viable in the 21st?
RESIDENT’S COMPLAINT
Blair Crane was the highway superintendent in April 2019 when neighboring landowner Mike Kruszyna filed the complaint that Warner had “erected a gate on the right of way.”
According to court documents, the town stepped in quickly.
In a November 2022 affidavit, Select Board member Michelle Francesconi came down on it being a public way.
“I personally know that the road is used by abutters, hikers and snowmobilers,” Francesconi said. “I have also personally viewed the gates and fences and know that they obstruct passage on the road.”
Warner’s attorney later responded to that sentiment.
“How many hundreds of thousands of dollars of taxpayer funds do the members of the Town of Cheshire’s Board of Selectmen intend to spend to re- create a long-abandoned ancient way, all for the convenience of one complaining landowner?” Mozian wrote in February 2023.
Kruszyna could not be reached for comment.
Citing the ongoing litigation, Town Administrator Jennifer Morse told The Eagle that the town and its attorney would not comment on the case. She declined to say how much the town has spent to press its case.
‘A CRAZY CASE’
Shortly after Warner’s lawsuit was filed in 2019, Cheshire asked the court to declare the road a public way and to order Warner to remove all fences and gates.
A Superior Court judge ordered that the gates and fences could stay up until the matter was adjudicated.
To make its case in court, the town hired a surveyor. Using the Registry of Deeds, the surveyor plotted the original road from 1847 and determined its width to be 99 feet. In effect, the public way today traverses several residential properties, on land the town had approved building permits and the like.
As Mozian put it, “This so-called public road now runs through people’s living rooms.”
The surveyor had to conform to the 99-foot width for the road, but it runs through Michael and Judy Koons’ house, Paula Morehouse’s house, pool and shed, and it encroaches upon John Crosier’s house.
“It’s a crazy case,” Mozian said.
Based on depositions of past highway superintendents, Mozian says the town has done “little to nothing” in the area of the road abutting Warner’s property.
Mozian argued that if the road is declared a public way, the town must maintain it like one.
Then-town attorney Edmund St. John III said in 2019 that the town had paved and taken care of parts of the road, while regularly maintaining National Grid power lines running along it. He said Warner could safely pasture his animals in other areas.
St. John said that the installation of fencing and gating restricted road use for passersby, and that the road had not been abandoned, as it is used by hikers, snowmobilers, riders of all-terrain vehicles and abutters.
In October 2022, Mozian cited case law stating that for a road to be public, it must be used for 20 years or more (use by abutters alone does not count) and it needs to have been maintained for at least 20 contiguous years.
In an affidavit from November 2022, Town Clerk Christine Emerson said the town has no record that it has discontinued the road.
BY IMPLICATION
Before county government dissolved in 2000, Old West Mountain Road was considered a county road and under the jurisdiction of the County Commission. When county government went away, towns took over the county roads.
Mozian acknowledges that Old West Mountain Road could be deemed public — on paper. He points to a string of cases that have established that “a road, even if it’s public, can be discontinued by implication — the implication being, you have a different public road that runs the same course.”
According to Mozian, West Mountain Road, located nearby, is that different public road that runs the same course.
Roger Field sold the property to Warner in 2017. In a 2019 affidavit, the then 86-year-old Field said his family moved to West Mountain Road when he was 3. All his life, he’d called the stranded county road River Road, not Old West Mountain Road, as the town termed it.
“To the best of my knowledge, River Road has never been used by modern-day vehicles,” Field said. “I’ve never seen the Town of Cheshire do any maintenance or work to River Road.”
Based on information from a highway superintendent, Mozian says that around 1940, the current West Mountain Road was built, and Old West Mountain Road was no longer used as a thoroughfare.
The town’s surveyor admitted that the current West Mountain Road is used “instead of” Old West Mountain Road. While West Mountain Road is regularly driven, as well as maintained and snow-plowed by the town, the disputed area on Old West Mountain Road “is barely visible as a dirt track,” as Mozian puts it.
In 2022, Crane, the former highway superintendent, endorsed the removal of the gate blocking the right of way, but not the fence. He said removing the fence was unnecessary because Warner owns both sides of the road, and the route is not traveled by road-legal vehicles.
“I recommend that the town move to formally abandon the impassable section of Old West Mountain Road,” Crane said.
Crane said Old West Mountain Road “is of little value to the taxpayers of Cheshire.”
Mozian highlighted the situation before the Morehouse and the Coons residences, whose homes are bisected by the “alleged public way.”
“The Court should not permit the Town to destroy the value of the homes of Cheshire residents,” Mozian said in November 2022.
Attorney Andy Hochberg is representing Morehouse and the Coons should the town’s claim that the road’s width is 99 feet become problematic for them. Hochberg said the claim may cloud the titles of the nearby property owners.
“It’s a concern,” Hochberg said. “If the town owns what they claim they own, then it creates an issue on properties where they’ve given building permits.”
“It provides no benefit to the town,” Hochberg added, “and is a detriment to a good number of the town’s residents.”
A trial to decide what happens next is scheduled for October.