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Massachusetts Agencies

Rights of Abutters in Private Ways

Streets and Ways

There are two basic rights which abutters of private ways have in such ways. First, there is the right of access. The cases are clear that in connection with a conveyance of property shown on a plan there is also conveyed therewith the right to use the private ways shown on that plan. Pearson v. Allen, 151 Mass. 79, 23 N.E. 731 (1890). The Pearson court, although it stated that it did so "with some hesitation," held that the rights so acquired over the ways was limited to those ways which provided "necessary or convenient" access to the property, and was not to be expanded to ways which simply provided "purposes of prospect." In other words, the rights in the ways do not necessarily extend to all the ways shown on the plan, but rather only to those ways that provide direct passage to the property.

A right associated with the foregoing right is that concerned with the installation of utilities. 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." 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 second right concerning ways is that concerned with the ownership of the fee in the way. This right, once addressed by common law, are now codified by statute. See G.L.c. 183, §58. Interestingly enough, the word "abutting," as used in that statute, 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.[1] (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.)

1 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 if 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 other 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."