Nantasket Beach has been a popular summer resort since the 19th century. Pictured is an aerial view of the Nantasket Beach Resort hotel. Photo courtesy of HFF / File
For decades Massachusetts courts followed an ancient common law rule regarding ownership of land underlying roads and streams. Under this rule, transfers of land abutting roads and streams generally did not include the land beneath those roads and streams, unless the deed specified otherwise.
This rule created title problems involving strips of land beneath roads, especially undeveloped paper roads, and waterways, because the owners of such marginally useful properties were often difficult to identify.
In 1971, the Massachusetts legislature enacted the derelict fee statute as a solution. The statute provides that deeds transferring land abutting roads and streams automatically include the ownership interest of the grantor in such roads or streams, generally to the center line, except when deeds specifically state otherwise.
The statute’s implementing legislation gave it retroactive effect, so it would cure both existing and future title problems. But this retroactivity has two exceptions.
The first is for land established by the Land Court as registered land before the statute was enacted. The second applies where a prior owner of land beneath a road or stream “changed his position as a result of a decision of a court of competent jurisdiction.”
This second exception played an important role in an Appeals Court decision issued last March in Town of Hull v. Ferrara.
Town Claims Ownership of Undeveloped Road
John Ferrara and Kathleen Ferrara purchased a house lot and a beach lot on Nantasket Beach in 2017.
Between the two lots is a road known as Beach Avenue. Most of Beach Avenue is developed and maintained by the town of Hull, but not the small segment between the Ferraras’ two lots.
The town claimed ownership of that undeveloped portion of Beach Avenue and sued the Ferraras in Land Court to establish title. The Ferraras counterclaimed that they owned the disputed area because of the derelict fee statute. A land court judge ruled in the Ferraras’ favor, and the town appealed.
Reviewing the early history of the Ferraras’ neighborhood, the Appeals Court noted that in 1886 the Nantasket Co. sold the house and beach lots, but not the intervening segment of Beach Avenue, to Henry Norwell.
The Nantasket Co. next sold several lots and Beach Avenue, including the disputed area, to Eban Jordan. Jordan’s estate conveyed Beach Avenue and the disputed area to the town in 1913.
The court also discussed the Supreme Judicial Court’s 1915 decision in Hobart v. Towle, which involved a dispute over ownership of land beneath Manomet Avenue near Nantasket Beach.
Because the Hobart case arose decades before the derelict fee statute took effect, the SJC applied the old common law rule, and held that the land beneath Manomet Avenue belonged to the town, instead of the owner of an abutting lot. The town later took responsibility for paving and maintaining Manomet Avenue and most of Beach Avenue, but not the disputed area claimed by the Ferraras.
Christopher R. Vaccaro
Retroactive Statute ‘Not a Time Machine’
The court’s decision noted that “the derelict fee statute applies retroactively, but it is not a time machine.”
It then applied the following logic to overrule the Land Court decision.
Beach Avenue, including the disputed area, was transferred to the town in 1915, before the derelict fee statute was in effect. Therefore, when the Ferraras acquired their house lot and beach lot decades later, they could not have acquired the disputed area, because the person who sold them the two lots did not own the disputed area.
After the Hobart decision, the town paved and maintained roads in Nantasket Beach, including most of Beach Avenue. The court found that this amounted to a change of position by the town, in reliance on the earlier SJC decision, falling within the second exception to retroactive application of the derelict fee statute.
The court was not persuaded by the Ferraras’ argument that the town never changed its position as to the disputed area because the town did not develop it as a road.
One Appeals Court judge dissented from the decision. He would have applied the statute retroactively to uphold the land court’s judgment for the Ferraras, despite the transfer of Beach Avenue to the town in 1913.
He also observed that the town’s paving and maintenance of public ways is a municipal activity independent of ownership of land beneath the ways. That activity was not sufficient reliance on the 1915 SJC decision for the exception to the statute’s retroactivity to apply.
Earlier this month, the Supreme Judicial Court allowed the Ferraras’ application for further appellate review. This case is not over yet.
Christopher R. Vaccaro, Esq., is a partner at Dalton & Finegold in Andover. His email address is cvaccaro@dfllp.com.
