Streets and Ways
Though a plan was referenced in a deed and though the right of way was depicted on the plan that is not sufficient to prevent the application of G.L.c. 183, §58, which provides that the fee in an abutting street is deemed conveyed in a deed of property that abuts the street. See Tattan v. Kurlan, 32 Mass.App.Ct. 239, 588 N.E.2d 699 (1992). This rule applies so long as there was no express reservation to as to the fee within the right of way.
Though the fee lying beneath this portion of the right of way may not be in the developer who conveyed the property abutting the street, the developer may, nonetheless, have some rights in the street. Those rights, if they exist, would be in the nature of (i) an easement of way and (ii) a right to create or develop a road. In Tattan it was determined that the first of these rights existed, inasmuch as the party claiming them was an abutter to the way, but that the second right did not, apparently because the party did not own the bed of the way. Being unable to develop a road is, of course, important to the developer. But does the right of access, that is, an easement of way, exist? In Boudreau v. Coleman, 29 Mass.App.Ct. 621, 564 N.E.2d 1 (1990), the court reiterated the rule that had been declared in Scagel v. Jones, 355 Mass. 208, 243 N.E.2d 908 (1969) and, citing Scagel, said "[i]n the absence of such express reservation [of the easement], the conveyance of land with reference to a plan creates such an easement, other than by necessity, 'only if clearly so intended by the parties to the deed.'" The matter of intent depends upon the configuration of the property. See Scagel, wherein a common owner conveyed land with reference to a plan which showed a right of way servicing retained land (also shown on the plan), but failed to refer to the right of way or state that it benefitted the retained land in the deed of conveyance. The court concluded that the retained land in fact enjoyed the benefit of the right of way because (i) the easement was shown on the plan referenced in the deed and (ii) the retained land had no other manner of access.
1 Compare Patel v. Planning Board of North Andover, 27 Mass.App.Ct. 477, 539 N.E.2d 544 (1989).