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Derelict Fee Statute and Easements by Estoppel

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").

The statute on its face, however, does not purport to grant use rights; it only governs the interpretation of deeds for properties abutting ways. See Tattan v. Kurlan, 32 Mass. App. Ct. 239, 242 (1992) (statute "establishes an authoritative rule of construction for all instruments passing title to real estate abutting a way"). In so doing, "[t]he statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor. The common law presumed that the grantor intended to pass title to the center of the way." Id. While the presumption in the statute is stronger, see id.; the law still is a codification of the common law.

On the question of corresponding easement rights, in contrast to fee ownership, the Appeals Court in Brennan, supra, cites to the decisional law concerning easements by estoppel. See id., citing, e.g., Goldstein v. Beal, 317 Mass. 750, 755 (1945). The Appeals Court in Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477, 481-482 (1989), provides a thorough explanation of easements by estoppel, as follows:

The Massachusetts cases recognizing that an easement may be created by estoppel have fallen into two general categories. In the first category, ' "when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed." Casella v. Sneierson, 325 Mass. 85, 89 [89 N.E.2d 8] [1949], and cases cited. This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated.' Murphy v. Mart Realty of Brockton, Inc., 348 Mass. at 677-678, 205 N.E.2d 222 (citations omitted). See also Thompson v. Lorden, 358 Mass. 69, 73, 260 N.E.2d 683 (1970). In the second category, 'where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan. See Farnsworth v. Taylor, 9 Gray, 162 [1857].' Goldstein v. Beal, 317 Mass. 750, 755, 59 N.E.2d 712 (1945) (other citations omitted). See also Uliasz v. Gillette, 357 Mass. at 102-103, 256 N.E.2d 290. For purposes of this discussion, we assume that, consonant with the second principle, an easement by estoppel in favor of a grantee of land shown on a recorded plan would extend to all ways shown on the plan which the grantee might reasonably have expected he would have the right to use.

The simultaneous application of the Derelict Fee Statute and the doctrine of easement by estoppel is complicated by an inherent limitation upon the latter, common law doctrine: it cannot be invoked to create an easement by implied reservation.

In Krinsky v. Hoffman, the Supreme Judicial Court articulated the foregoing rule, as follows:

The plaintiffs, relying on Downey v. H. P. Hood & Sons, 203 Mass. 4, 10, 89 N.E. 24; Prentiss v. City of Gloucester, 236 Mass. 36, 127 N.E. 796, and similar cases, argue that the reference in the defendant's deed to a plan which showed the passageway gave them a right of way by estoppel. See Casella v. Sneierson, 325 Mass. 85, 89 N.E.2d 8. But the plaintiffs here are seeking to establish a reservation of an easement by implication, and we know of no case and none has been brought to our attention where that principle has been applied to a reservation of an easement as distinct from a grant. Under the estoppel doctrine it has always been held that the estoppel runs against the grantor rather than against the grantee. See Tiffany, Real Property (3d Ed.) §§ 799, 800.

326 Mass. 683, 688 (1951). At first blush, this may seem to be an obscure, nuanced and unimportant principle, but in application it matters greatly.

The Derelict Fee Statute is most often applied in a scenario in which the Grantor retains land on the opposite side of the private way, frequently in a subdivision context. When the Grantor conveys a lot on one side of the way, under the statute, the Grantee receives an ownership interest to the midpoint of the way, with the Grantor retaining ownership of the other half of the way attendant to the lot on the opposite side of the street, which the Grantor still owns. However, based on the principle set forth in Krinsky, above, the Grantor cannot reserve by estoppel an easement over the portion of the way conveyed to the Grantee in fee, by operation of the statute. He must expressly reserve an easement. Otherwise, barring the application of another theory of implied easement, such as by common scheme, prior use or necessity, the Grantee who eventually takes title to the lot on the opposite side of the street from the parties' original Grantor will have no easement over the portion of the right of way owned by his neighbor across the street. It is for this reason that practitioners need to be careful when they presume that the application of the Derelict Fee Statute means that the fee holder in the way has an easement over its entirety. The conclusion does not necessary follow.

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

Copyright (c) 2011-2015 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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