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On Behalf of | Aug 7, 2014 | Real Estate Law |

The so-called Derelict Fee Statute, General Laws Chapter 183, Section 58, comes up with great frequency in our practice, because people often get into disputes over the ownership and, thus, control of private ways. The statute governs the interpretation of deeds when they convey title to properties that abut ways in Massachusetts, where the grantors also own those abutting ways. By operation of the statute, title to property abutting a way carries with it either (i) ownership to the midpoint of the way, when the grantor retains land on the other side of the same; or (ii) ownership of the entire width of the way, when the grantor does not own land on the other side of the same. The only effective method to overcome the operation of the statute is to include “an express exception or reservation” of the ownership interest in the way in the deed itself. See Tattan v. Kurlan, 32 Mass. App. Ct. 239, 245 (1992). Resort cannot be made to evidence outside of the four corners of the instruments of conveyance and the plans of record incorporated into the same by reference. See McGovern v. McGovern, 77 Mass. App. Ct. 688, 699 (2010).

The statute was first enacted in 1971 and “codified what was already a general principle.” Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434, 437 (2006). “[U]nder the common law rule of construction the mention of a way as a boundary in a conveyance of land was presumed to mean to the middle of the way if the grantor owned the way. This presumption could be overcome by clear proof of a contrary intent of the parties from the language of the deed and the attendant circumstances surrounding the conveyance.” Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339, 343 (1993) (citations omitted).

The statute, thus, “embodies an even stronger presumption in favor of vesting title in abutters than the common-law rule that it superseded,” Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 804 (2003). The law’s “object was ‘to meet a situation where a grantor has conveyed away all of his land abutting a way or stream, but has unknowingly failed to convey any interest he may have in land under the way or stream, thus apparently retaining his ownership of a strip of the way or stream.'” Id., at 803, quoting 1971 House Doc. No. 5307. Its intended “effect was to quiet title to sundry narrow strips of land that formed the boundaries of other tracts.” Id. In order properly to effectuate this purpose, the Legislature made the statute retroactive. See id., at 803.

Over the years, there have been many cases to consider the application of the statute to various fact patterns. Most of the cases focus on what it means to be a “way” or “property abutting a way” under the statute. These cases teach that, in addition to typical rights of way, railroad beds are “ways”, triggering application of the statute. See Rowley, supra, at 805-807. They also hold that it is unnecessary for the deed to describe the relevant property by reference to a way as a lineal monument; it is sufficient that the property abut a way in fact on the ground for the statute to apply. See id., at 805. Moreover, the statute applies when a deed refers to a plan which depicts the property conveyed as abutting a way, “even if the way is not physically in existence, so long as it is contemplated and sufficiently designated.” Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987).

While many issues have been resolved by the decisional law, many questions remain unanswered. For instance, as previously mentioned, Rowley holds that the statute applies regardless of how a property is described by a deed, as long as the property abuts a way in fact on the ground. The Appeals Court, however, in Hanson v. Cadwell Crossing, LLC, 66 Mass. App. Ct. 497, 500-502 (2006), held that the party asserting ownership of the “way” by operation of the statute was appropriately foreclosed from submitting extrinsic evidence of the way’s existence on the ground, in affirming that the relevant parcel was not “property abutting a way” per the statute. How, then, might a claimant show that property abuts a way as a matter of fact, if not through evidence outside the four corners of the deed?

In addition, despite the statute’s vintage, there has been no judicial treatment of whether the retroactive application of the statute might violate a party’s Due Process rights. See Bird Anderson v. BNY Mellon, N.A., 463 Mass. 299 (2012). Moreover, while the Supreme Judicial Court has defined what it means to be “abutting a way” under typical circumstances, see Emery v. Crowley, 371 Mass. 489, 494 (1976) (parcel at end of “way” does not “abut” same); no court has considered how the statute applies to a residential cul-de-sac. Questions, such as these, ensure that even a 40 plus year old statute continues to make our work fresh and interesting.

Written by Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C

Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.


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