Massachusetts Real Estate Lawyer Blog
When the ownership or right to use a road is in dispute, the issue may need to be settled by a court of law. An August 30, 2017 Massachusetts real estate case illustrates a controversy between a homeowner and the town concerning the status of a roadway. The plaintiff sought a judgment that a portion of the roadway was a private way for the use of himself and a neighboring homeowner, but not the public at large. The town denied that the section of the roadway was private, and asserted that it was a public way pursuant to a plan designating it as such, which was filed in connection with a registration petition for the plaintiff’s property by the previous owner.
The issue before the Land Court, therefore, was whether the section of roadway was a private or public way. As the party asserting the public way, the burden was on the town to prove its claim that the section of roadway at issue was public. In Massachusetts, a private way is not public unless it has become so by one of the following ways: (1) a laying out by public authority in the manner prescribed by statute; (2) prescription; or (3) prior to 1846, a dedication by the owner to the public use, permanent and unequivocal, coupled with an express or implied acceptance by the public.
In the case, the town conceded that the public way was not laid out according to the relevant law. The town did not produce any evidence that the roadway was a public way by prescription, nor that it was created by a dedication prior to 1846. The town solely relied on the depiction of the roadway as “public” in the registration plan as conclusive evidence on the issue, arguing that the plaintiff was precluded from asserting that it was a private way.
The Land Court found that the registration proceedings involving the previous owner of the plaintiff’s property did not delve into the issue of whether the roadway was public or private. Rather, the general purpose of the land registration was to provide a means by which the title may be readily ascertained. Accordingly, the court determined that the plaintiff was not precluded from asserting his action. Observing that the burden of establishing a public way had grown greater over the years, the court went on to hold that a finding that the roadway was a public way based on its designation as “Public” on the registration plan would be contrary to established law regarding the three specific methods by which ways can become public.
The court also examined the evidence of record, which indicated that the way retained its private status. The court noted that the plaintiff maintained and plowed the section of roadway at issue, while the town merely monitored and cleared brush in the drainage ditch to prevent flooding. As such, the court found in favor of the plaintiff, ruling that the section was not a public way.
At Pulgini & Norton, our experienced land use attorneys handle a variety of real estate matters for individuals and homeowners in Massachusetts. We can provide legal advice regarding residential purchases and sales, mortgage financing, zoning and building applications, title actions, and more. Further your real estate goals by contacting Pulgini & Norton at (781) 843-2200 or online today to schedule your free consultation.
More Blog Posts:
Massachusetts Land Court Denies Non-Owner’s Claim of Prescriptive Rights in Beach Property, Massachusetts Real Estate Lawyer Blog, published May 1, 2017
Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016