Right to Install Utilities and Other Rights
At common law a general grant of a right of way would create only a right of ingress and egress and would not be deemed to include a right to lay pipes or to erect structures in or upon the way. See Crullen v. Edison Electric Illuminating Co., 254 Mass. 93, 149 N.E. 665 (1925), Ward v. McGlory, 358 Mass. 322, 265 N.E.2d 78 (1970), Ampagoomian v. Atamian, 323 Mass. 319, 81 N.E.2d 843 (1948). The common law was modified by statute, which provides in pertinent part:
The owner or owners of real estate abutting on a private way who have by deed existing rights of egress and ingress upon such way . . . shall have the right by implication to place, install or construct in, on, along, under and upon said private way. . . [utilities]. G.L.c. 187, §5.
The statute is constitutional and retroactive. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212, 402 N.E.2d 501 (1980). In this regard the statute requires that the property which is to have these additional rights concerning utilities be "abutting on a private way." (Emphasis added.) That term, with respect to the aforementioned statute, is interpreted in its normal sense and includes property at the terminus of the way. Barlow v. Chongris & Sons, Inc., 38 Mass.App.Ct. 297, 647 N.E.2d 437 (1995).
The above statute states that there is a right by implication to install utilities in favor of the owners of property abutting a private way "who have by deed existing rights of ingress and egress upon such way." The first question is, does the party who wishes to install utilities have "rights of ingress and egress" over the street at issue? The second question (if the first one is answered in the affirmative) is, does that party enjoy those rights "by deed"?
Though many deeds—and all those involved in the cases I can find regarding the application of the above statute—refer specifically to rights of passage in the grant itself, "[s]uch circumstances may exist at the time there is a grant of land that the instrument of grant describing the premises but making no reference at all to an easement nevertheless created one." Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 153, 187 N.E. 227 (1933). This occurs, for example, where a parcel is sold out of a larger tract, which tract includes both the parcel and the street, and the conveyance necessarily thereby severs the parcel from the common ownership of the developer. The purchaser of the parcel acquires by reason of implication rights over the street, whether those rights are stated in the deed or not. Assuming that the title evolves consistent with this "common ownership" configuration, whereby its severance from a larger parcel created rights over the street, the question is whether these rights are enjoyed by the party "by deed."
"The only three methods by which one can acquire the right to pass over private land are: adverse user; grant; or act of public authority." Dolan v. Board of Appeals of Chatham, 359 Mass. 699, 270 N.E.2d 917 (1971). The rights that I think we would all agree your client has—namely, the rights of passage over the street as discussed above—did not arise by act of the public authority (i.e., eminent domain), because the street is not a public way. Also, adverse user (prescriptive rights) are not the claimed basis of access. That leaves "grant" as the only alternative under Dolan. And, indeed it is the terms of the deed by which these rights were created. It is the conveyance—the deed—under which these rights arise.
One might argue that the phrase "have by deed existing rights of ingress and egress" ought to be read to mean "have by deed as expressly stated therein existing rights of ingress and egress." Such an interpretation adds words where there are none. Moreover, the legislature was well aware of the language available to it in drafting the law: in just two sections prior in the very same chapter the legislature elected to use the term "express grant or covenant" (emphasis added) in connection with the acquisition of easements for direct sunlight. It seems apparent (at least to me) that the use of the phrase "by deed" has no particular significance with respect to what the instrument must state, but rather was an effort by the legislature to distinguish situations were rights of passage were created in other ways—i.e., by prescription or by eminent domain—in which cases the ability to install utilities would not be implied.
1 Interestingly enough, the word "abutting," as used in another statute (G.L.c. 183, §58), was explored in Emery v. Crowley, 359 N.E.2d 1256 (1976), wherein it was decided that in connection with that statute, the term would not be deemed to include land at the end of a way. However, the conclusion in Emery was reached because of the specific wording of the statute being examined, and the fact that the statute dealt with the fee interest in the abutting way. (Note that the provisions of G.L.c. 187, §5, however, are such that a reasonable conclusion can be reached that property "abutting" a way would include the subject premises, even though it may be located at the end of the right of way.)
In Emry, where the court was examining G.L.c. 183, §58, the court noted that in connection with the word "abutting" the statute made mention of land "on the same side" and "on the other side" of a way, and that "[t]he statutory silence with regard to real estate at the end of the way signifies that such real estate does not 'abut' the way in the traditional or statutory sense of the word." The court also acknowledged that is the landowner at the end of the way acquired fee rights in the way there would be an overlap of rights "encroaching on the property rights … of the abutting owners," resulting in competition for the very same fee title and essentially emasculating all the provisions of the statute. No such limiting language appears in G.L.c. 187, §5, and indeed the statute contemplates a coextensive "use by others." [Back to Text]