On November 14, 2016, the Land Court, Foster J., issued a Memorandum and Order Allowing Plaintiff's Motion for Summary Judgment in Fitchburg Capital, LLC, v. Bourque, Land Court Docket No. 12 MISC 464577 (RBF) in which the Court granted summary judgment for P&A's client, Plaintiff, Fitchburg Capital, LLC. The Memorandum and Order dismissed the Defendant's counterclaims for recovery of rental income pursuant to theories of conversion and accounting. In doing so, the Court agreed with Fitchburg that the Defendant's counterclaims were barred by all of three asserted bases: judicial estoppel, recoupment, and quantum meruit (unjust enrichment). Fitchburg's motion was successfully argued by Robert K. Hopkins, Esq.
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").