LEGAL OPIN. LTR RE PUBLIC WAY 07/31/2008 Linda Tardiff,
From: Thomas Stpierre'(TStpierre@Salem.com]
Sent: Tuesday, August 05, 2008 9:22 AM
To: satindollincPcomcast.net
Subject: Story Street memo.doc
Attachments: oledata.mso
�� �oivnlrt� CITY, OF SALEltv1
LEGAL DEPARTMENT
93 WASHINGTON STREET♦ SALEM,MASSACHUSEm 01976
TEL:978-745-9595+FAx 978-744-9327
KamERLEY DRucoLL
ELIZABETN 1ZENNARD,ESQ. JERALD PARISELLA,ESQ.
MAYOR CITY SOLICITOR ASST.CITY
SOLICITOR
MEMORANDUM
To:_Thomas $t.�Pierre, Building Commissioner
From:Jeralffarisella, Assistant City Solicitor
RE: Story Street
July 31, 2008 '
You have asked that I provi&a legal opinion concerning the rights and responsibilities of owners;of land that
abut a private'or public way; specifically,'the abutters to Story Street.
It is my opinion that Story Street is a public way that extends about 398 feet,or so westerly from Jefferson
Avenue. In 1910'the City Council a'pproved'the lay out of Story Street for a Iength'of about 163 with a width of
about 40 feet. In 1913 the City Council extended Story Street another roughly 236'-feet..Story$treet is shown on
Assessor's Map 23. However, the Assessor's Map shows Story Street extending all the way to Willson Street. I
believe this extension is from a 1915 plan 'recorded at the Registry of Deeds that proposed a subdivision. This
extended road was called Sainte Anne's Paik on the plan.
According to City Clerk records, Sainte Anne's Park was never accepted as a public way, therefore, I believe
Story Street as'a public way ends roughly"'shown on the Assessor's Map as outlined'by a rectangular line laid
out over Story Street. The end of Story Street is also shown on a plan recorded at the.Aegistry of Deeds at Plan
Book 410 Plan 16. The rest of the way is.' ivate, and is commonly.referred to as'a,paper,street.
City ways are open to use by the general'Public equally. The general rule is that'p'rivate'citizens do'not have a
right to make repairs to public ways. Perry v:Planning Board of Nantucket,'15 Mass"App.Ct. 144 (1983).,
Owners of land that abut a private way have rights to use and pass over the way. "The title of persons who
acquire land bounded by a street or way runs to the center line of the way and carries with it the right to use the
way along its entire length." Brennan V. DeCosta,'24'Mass.App.Ct. 968 (1987), interpreting G.L. c. 183 sec. 58.
1
Viis also includes the right of abutters to make reasonable repairs to the private way. Hodgkins v. Bianchini,
323 Mass. 169.
However;because abutters to a private way have equal access to the way, I do not believe a neighbor has a right
to obstruct the way, or prohibit access to it.
If a neighbor is obstructing access to a private way,�then this type of dispute should be resolved in a civil action
in the appropriate Court. I do not see a reason why'the City would be involved in such a matter.
Specifically related to Story Street, Mr. Lovely erected two posts so that he could'attach a chain to them and
block access to the private way. It appears these posts were installed beyond Story' Street and in the private way.
Mr. Lovely states that he has ownership rights to this area by adverse possession.'I make no determination
regarding this claim. If these items were erected on the private way, then this matter should be resolved amongst
the abutters to the way, and the City should not involve itself in the dispute regarding blocking the way.
If the posts were erected without proper permits or approvals, such as building permit or approval from the
Conservation Commission, then the City does have jurisdiction regarding these matters. As building
commissioner, you should determine if a building permit is needed, and the Conservation Commission has
jurisdiction to rule if the installation was,done within the buffer zone of wetlands, and.if an order of conditions
or other approval is required.
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