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Massachusetts private Right of way laws

Customer Question

I own a property in Massachusetts where, years ago, a right of way was sold to a lumber company who had landlocked land behind us. Recently the land was sold to a private owner who has other access to this property, but has been using the right of way at all hours to run ski doo''s around. when approached to limit the use to daylight hours they want to argue. I have tenants in the house about 50 feet from the right of way who have small children and are not happy with this activity. The driveway for the home is part of this ROW. The new owner of the land also has berated our tenant for putting snow in the right of way. The ROW, when made with the lumber company said that they would maintain it so I have told the tenant to put the snow wherever it will go, if they want to use it they have to make it usable and not ruin the driveway. We have offerred to buy the ROW back, but have been turned down. Is there anything we can do about this?
Submitted: 6 years ago.
Category: Legal
Expert:  Dan replied 6 years ago.

Donna:

I can see that this would be very problematic, but I'm not sure that there is much relief for you in sight.

The right of way (also called an easement) usually "runs with the land", which means that when the right of way was sold to the lumber company, the right to use that access route became permanently attached to their property, so that prior owner and all future owners of that property would retain that right of access.

If you haven't done so already, you should review the language of your easement. Although it is unlikely, it still is possible that the right of way was for that one property owner only (the lumber company).

With all that given, it seems arguable that the use by the neighbor of the right of way as a snowmobile course is a use not contemplated by the right of way. In that event it is not really being used for ingress/egress, but as a recreational track, and their use of it in this manner is a nuisance. Unfortunately this would require a lawsuit to pursue, but you may have a basis for asking a court to limit their use of the right of way to traditional ingress/egress only. Short of going to court, there isn't a lot of leverage that you can pull in that regard.

One thing that you have to be careful about is that as the property owner you do not have the right to obstruct their use of the right of way. So if moving snow into the right of way obstructs the neighbor's access, the court could rule against you there. My main concern here is that if you decide to go to court over this, you want come in with "clean hands" so that there aren't any issues that the neighbor can hold over your head in front of a judge.

Perhaps with a lawsuit pending which alleges that their use of the ROW as a snow mobile course is outside of the contemplated use of the ROW and is a nuisance, you might have more leverage in convincing them to sell the ROW back to you.

I wish I had stronger options for you.

I hope this has helped. Let me know if you have any followup questions. If none, please remember to click on the ACCEPT link so that I may receive credit for working on this topic with you. (I'd greatly appreciate it!)

Thank you,

Dan

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The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

PS: If an answer appears to you to have been very helpful, or to have taken above average expertise and/or research, or if the answer shows an above average amount of time and dedication devoted to your issue, a bonus is nice way to say "Thank you". Thanks!

Customer: replied 6 years ago.
I don't feel like I learned anything I didn't already know. You also didn't mention that snow mobiles need to be operated at least 150 feet away from dwellings. (something I found out on line while waiting for your answer) I thank you for your time, but do not feel it was worth $30.
Expert:  Dan replied 6 years ago.

Donna - it is hard to know what you know unless that information is posed in your question, yet I apologize for having not increased your body of knowledge.

I find relatively little information on the rule that snowmobiles cannot be operated within 150 feet of dwellings. If you are going to utilize that rule, it seems that the best approach is to contact the sheriff to complain that there is snowmobile traffic within 150 feet of the house (it may be the tenant has to file the complaint). Be prepared to give the chapter and verse as to which regulation you are citing. Then ask that they enforce the rule.

I can see where they might claim that they have permission under the ROW to come and go on that path regardless of whether it is less than 150 feet from the dwelling. In some situations where each side looks like it has some merit to it's position, the sheriff refuses to do anything but says that you'll need to resolve the matter yourselves in court.

As far as accepting or not accepting my answer, that is entirely your prerogative.

Either way, I wish you the best in your matter.

Dan

--------------

The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

 

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Retired attorney, general practice, with an additional background in financial planning,