The public generally enjoys an easement of travel over all public roads. In rare circumstances, the public may also have a right to use a private way. However, such a right does not include the broad rights of a public road. In an August 21, 2019 Massachusetts real estate case, the plaintiffs brought an action in Land Court to establish a right of access over the defendants’ private roads.
The plaintiffs in the case owned two landlocked parcels of land, with no means to reach it from a public way or public road. Rather, the only available access to the plaintiffs’ parcels was by using two private ways, which were located on the defendants’ properties. In their Land Court action, the plaintiffs asserted that they had the benefit of a public right of travel over the defendants’ two private roads.
In Massachusetts, a private way may become a public way by prescription. There also can be private ways, not dedicated to public use, that are nevertheless open to public use by license or permission of the owner. Generally, establishing that a private way has become public is more difficult to prove than showing that a private way is open to the public. The rights allowed in a private way open to the public, however, are much more limited than the easement rights afforded to the public in a public way and a public way by prescription.
For public roads, the public’s easement of travel includes the installation of water and gas pipes, sewers, telephone lines, electricity, police boxes, traffic lights, signs and similar devises, as well as transportation use and ordinary travel. Conversely, private ways that are open to the public at large are simply for ordinary travel. Further, the public use of a private way may be terminated at any time at the will of the owner.
The plaintiffs conceded that the evidence was not sufficient to establish that the private ways at issue were public ways by prescription. Instead, they asserted a claim of a private way open for public use. To support their claim, the plaintiffs relied on a Massachusetts statute authorizing a city or town to appropriate money for snow and ice removal from private ways open to public use. The plaintiffs then presented evidence that the town within which the parties’ properties were located had plowed the private ways since at least the late 1970s. In addition, the town had erected signage and performed maintenance work as well as other road work on the private ways.
The Land Court concluded that the plaintiffs had successfully established that the private ways were private ways open to public use by permission of the owners. The court noted, however, that such permission was terminable at will, and that the plaintiffs’ rights did not include the right to install utilities.
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