Is there a path with ancient tire tracks or what looks like an old a dirt or gravel road or undeveloped right of way near your land? Perhaps just a simple path through the trees between you and your neighbor’s yard? Have you or someone else in your neighborhood learned of a plan of land or survey or town map that depicts a road or path but it doesn’t physically exist on the ground? Maybe the issue came up when a neighbor started arguing with you; claiming a right of way to travel over or on a path through your property, where the path is the boundary between your parcel and his or hers? Land titles on the North Shore and throughout Massachusetts go back hundreds of years. There are paths and ways, discontinued streets and narrow roads carved between parcels as the developers created subdivisions. It is not uncommon to find sub-division plans where a narrow swath is between lots and never sold or conveyed by the old owner (even after all of the lots have been sold off). In many circumstances this creates a private way, right of way or paper street.
When that occurs: who owns it, who has rights to use the path, and for what purpose? The answers often require a title examination and analysis of Massachusetts case law and statutes. One law to consider is Massachusetts General Laws Chapter 183 s. 58, also known as the “Derelict Fee Statute”.
Section 58. Every instrument passing title to real estate abutting a way, whether public or private…shall be construed to include any fee interest of the grantor in such way…unless (a) the grantor retains other real estate abutting such way… in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way…as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way…between the division lines extended, the title conveyed shall be to the center line of such way… as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.
The purpose of the statute is “to meet a situation where a grantor has conveyed away all of his land abutting a way or stream, but has unknowingly failed to convey any interest he may have in land under the way or stream, thus apparently retaining his ownership of a strip of the way or stream.” 1971 House Doc. No. 5307 (returning bill for further amendment) and to quiet title to narrow strips of land that formed the boundaries of other tracts, by establishing “an authoritative rule of construction for all instruments passing title to real estate abutting a way.” Tattan v. Kurlan, 32 Mass. App. Ct. 239, 242 (1992); see also Rowley v. Mass. Electric Company, 438 Mass. 798 (2003). The Derelict Fee Statute applies retroactively, to all prior title instruments. Id.
The Middlesex Superior Court recently considered the application of the Derelict Fee Statute to property in Medford. In Blomerth v. Scutellaro et al, Middlesex Superior Court Docket 1581cv2821 plaintiffs sought to quiet title to a private way and to determine the abutters’ interests in the private way. The parties to the action each own the land that abuts the private way. The land was held in common ownership until 1957. The deeds conveyed out of common ownership state that the parcels are bounded by the way. The common grantor did not reserve a fee interest in the way in any of the deeds out of common ownership.
Subsequent to the conveyance of all the land abutting the way, the common grantor sought to deed the strip of land that constitutes the way.
The plaintiffs claimed that the Derelict Fee Statute passed title to the center line of the way abutting each of the parties’ properties when the first deed out of common ownership was executed. They also asserted that a subsequent deed from the common grantor, attempting to convey just the way, was void. The Court confirmed that the Derelict Fee Statute is retroactive, ruled that the Derelict Fee Statute applied, and that deeds to the abutters included the way even though not contained in the legal description. “The deeds, themselves, expressly provide, either through text or reference to a plan, that each property is bounded by the way, and state no reservation of right in the fee to the way in favor of the grantor. Accordingly, under§ 58, title to the center line of the way of the properties passed to the abutters to the way”. The Court also found that a deed which attempted to convey or sell ownership in just the way, after the abutting property had already been sold, was void; with the Court citing Daly v. Donovan, 258 Mass. 226, 227 (1927) (“The granter, however, not having title, her deed conveyed nothing”).
 As amended in 1973, and 1990.