Massachusetts Homeowners Seek Declaration That Road Bordering Their Property Is Public Way

Local municipalities are primarily responsible for the upkeep of public county roads, a duty that would be burdensome for many average residents.  For this reason, the plaintiffs in a March 12, 2018 Massachusetts real estate case sought to establish that the road bordering their property was a public way.  The plaintiffs filed an action against the town and highway superintendent, arguing that the road was a public way, thereby requiring the town to repair, maintain, and remove snow for its entire length.

In Massachusetts, land acquires the status of a public way if it is:  (1) laid out by the public authority pursuant to statute; (2) claimed by prescription; or (3) prior to 1846, dedicated by the owner to permanent and unequivocal public use.

In the case, the plaintiffs first contended that the road at issue was laid out by public authority.  Specifically, the plaintiffs alleged that the road was part of another road that had been explicitly laid out by the county commissioners in 1768.  The court rejected the argument, noting that the description of the public road in the record laid out by the county commissioners did not include the direction of the road at issue.

Secondly, the plaintiffs presented old maps depicting the way dating back to 1781.  However, the court held that, even if the maps were found to be reliable, there was no evidence connecting the way to a layout by public authority.  Pursuant to the statute, only county commissioners, councils of governments, or other duly authorized councils, committees, or boards may lay out a public way.  Furthermore, ancient maps alone are insufficient to recognize a road as public.  The court also explained that, despite the deeds in the property’s chain of title that described the road as a highway, references to roads in property deeds do not establish that a road is public.

The plaintiffs’ final argument was that failing to declare the road a public way would circumvent the intent of the grantor who dedicated a neighboring parcel of land to the town because access to the parcel via the road would be restricted.  The court held that the intent of the grantor is also insufficient to transform a private way into a public one, reasoning that if roads could be re-categorized as public ways by testators through their wills, local governments could be responsible for the maintenance and repair of countless roads.  Accordingly, the land court denied the plaintiffs’ request for a declaration that the road was public.

At Pulgini & Norton, our Massachusetts land use attorneys can advise individuals and homeowners in any residential real estate matter.  We assist with home and condo closings, reverse mortgages and refinancing, zoning issues, appraisals, and many other issues concerning residential property.  Schedule your consultation by calling (781) 843-2200 or submitting the contact form on our website.

More Blog Posts:

Massachusetts Property Owner Petitions to Register Title to Salt Meadow Based on 1886 Deed, Massachusetts Real Estate Lawyer Blog, published October 9, 2017

Massachusetts Homeowner Wins Land Action Against Town, Acquires Use of Private Roadway, Massachusetts Real Estate Lawyer Blog, published September 18, 2017

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