Rights in Subdivision Ways
Streets and Ways
The case of Pearsonv. Allen, 151 Mass. 79, 23 N.E. 731 (1890) seems to be the first case that specifically states that there are instances when the academic rule that a lot owner acquires rights in all subdivision ways may not apply. Although the court cites prior cases which intimated that such an exception to the academic rule existed, it seems to be the first case which specifically so holds. It is evident from the decision that the court was deeply divided on the issue:
The only question worthy of discussion is whether the private rights of way, if any, to which the plaintiff is entitled by reason of the reference to the plan in her deeds, extended to Centre Street [a street somewhat removed from the plaintiff's lot]. We are of the opinion, on the whole, that they do not. * * * With some hesitation we feel bound to decide that the value of a right of access for purposes of prospect is not a sufficient reason to extend [the plaintiff's] right of way over Centre Street. (Emphasis added).
But the court also said:
No doubt the grantee sometimes may be entitled to have ways kept open which his land does not touch, if they are necessary or convenient in order to reach a highway. * * * We do not mean that these circumstances would be conclusive in all cases. (Emphasis added.)
The right to "prospect," then, may extend for the entire length of the street on which a particular lot is situated. In this regard, in Tattan v. Kurlan, 32 Mass. App. Ct. 239, 588 N.E.2d 699 (1992) the court cited the "familiar rule" that "when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right . . . acquired by the grantee . . . [is at least] an easement of way . . . [along] the entire length of the way, as it is then laid out or clearly indicated . . . ." (Emphasis added.)
It appears that in addition to the rights of fee ownership acquired under G.L.c. 183, §58 there may be rights held by the owner lots on a street to an easement of way along the entire length of McLay Road, to which we would take an exception.
Though lots in a subdivision may enjoy rights over the subdivision roads, other property or lots which abut the subdivision but are not part of it do not have such rights. Dolan v. Board of Appeals of Chatham, 359 Mass. 699, 270 N.E.2d 917 (1971).