Massachusetts contains thousands of private streets and ways; on and along those ways innumerable residents of this Commonwealth live. We know that the Derelict Fee Statute operates to resolve ownership questions regarding these private ways. However, the "statute pertains only to the question of ownership of the fee [in a private way]"; it does not govern use, maintenance, or other rights and/or obligations over a way, which, for the purposes of this blog post, fall within the province of the common law of easements. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 389 (2005).
Easement agreements are used to address a wide array of issues and interests of landowners including resolving property disputes, clarifying property rights between neighbors or granting new rights of access. Common to all however, is the fact that one person's land will be used by another party or person or sometimes many parties and persons. Right of way agreements that allow others to pass and repass over the land of another often raise questions about the liability of the landowner for loss or injury occurring to the easement holder or third parties who might use the easement-whether with permission or without. What then are the essential duties involved in this relationship and what can be done to mitigate exposure to landowners? As we will see, the relationship between the landowner (the owner of the servient estate) and the easement holder (the owner of the dominant estate) and various third parties is governed by competing legal propositions.