We have repeatedly posted about the so-called Derelict Fee Statute, G. L. c. 183, § 58, in the past here at P & A. One aspect of the statute that we have not discussed is the interplay between the statute, which governs ownership of private ways, and the use rights that flow from properties' abutting the same. Many people, even seasoned practitioners, assume that ownership to the midpoint of the way carries with it an easement over the full length of the way. See Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987) ("[a]s a general rule, the title of persons who acquire land bounded by a street or way runs to the center line of the way, G.L. c. 183, § 58, and carries with it the right to use the way along its entire length").
In my last post on the Derelict Fee Statute (Mass. Gen. Laws. Chapter 183, Section 58), I discussed exceptions and reservations under Subsection (b) of that statute, which exempt conveyances from the law's operation. But, what are exceptions and what are reservations in deeds?
In my previous post on the Derelict Fee Statute (Mass. Gen. Laws. Chapter 183, Section 58), I addressed the basics of its application and noted that most of the case law interpreting the statute concerns what it means to be "real estate abutting a way". A small handful of cases, however, has focused on how to opt out of its application-what constitutes "an express exception or reservation" under the statute.
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).
What is fascinating, if not maddening, about the practice of law is that just when you think you've come across every iteration of facts that can be applied to a legal doctrine or precedent, you run into a scenario that tests-or at least puts a new twist on-a seemingly foregone conclusion.
For landowners abutting a private way, obligations regarding maintenance and repair of the way depend on who owns the fee in the private way. These obligations include things like snow removal, re-paving, proper drainage and other maintenance issues.