Letter to Planning Board_Rights to Pilots Way_4 25 22
15 Cape Lane
Brewster, MA 02631
Phone (774) 323-3027
Fax (774) 323-3008
Cell (508) 330-6640
csenie@senie-law.com
WWW.SENIE-LAW.COM
April 25, 2022
Mr. James Kupfer, Senior Planner
Barnstable Planning Board
367 Main Street
Hyannis, MA 02601
Tel (508) 862-4784
Fax (508) 862-4782
Re: 55 Pilots Way
Dear Mr. Kupfer and members of the Planning Board:
I represent Deacon and Allyson Crocker, owners of the property at 55 Pilots Way. Their
application to modify the existing subdivision approval, prepared by Merrill Engineers and Land
Surveyors, is on your agenda for this evening. I plan to attend and would like a chance to
comment on the application at the appropriate time. Also, an engineer from Merrill will attend
and present the application.
You asked that I provide some comments on the ownership of the fee interest in Pilots Way and
the rights of the various parties who abut the way to improve it. I’m happy to do so.
Pilots Way was created in 1973 when your board approved a 2-lot subdivision (plan recorded in
Plan Book 271, Plan 70). Pilots Way is described on the plan with metes and bounds and is a
separate parcel from the lots that eventually derived from the land within the subdivision. The
land records indicate that the developer of the subdivision, Charles F. Crocker, Deacon’s
grandfather, and his successors have never deeded out Pilots Way. Thus, ownership of the way
is determined by use of a statute called the Derelict Fee Statute (M. G. L. c. 183 §58).
Where the party who created the way owned property on both sides, the statute establishes that
the eventual owners of lots on either side, for the distance of their frontage on the way, own to
the mid-point of the way. Where the developer put the way on the edge of its property (owning
no land on the other side of the way) the owners of lots within the subdivision that abut the way
own the entire width of the way.
James Kupfer, Senior Planner
Barnstable Planning Board
April 25, 2022
Re: 55 Pilots Way
Page 2
In the case of Pilots Way, that part being altered if the current modification is approved is owned
by the applicant and his family, since the way was placed at the edge of the land subdivided in
1973. The applicant owns lot 6 (2110 Main Street) and lots 7 & 8 (55 Pilots Way), which abut
Pilots Way along the area being improved.
Separate from the question of who owns the fee interest in the way, you asked about the rights
my clients have to improve the way. Any single abutter, without approval of other abutters, may,
so long as approved by the Planning Board where such approval is required, make reasonable
improvements designed to facilitate use of the way as intended so long as such improvements do
not interfere with the right others have to use the way for its intended purpose (Murphy v Mart
Realty of Brockton, Inc., 348 Mass. 675 – 1965 and Guillet v Livernois, 297 Mass. 337 – 1937).
The court in Guillet stated: “The right of anyone entitled to use a private way to make reasonable
repairs and improvements is well established in cases where the way is already in use”.
The modest improvements to the road sought by the applicant, the cost of which he is covering
himself, do not in any way interfere with the rights of others to use the way, and are consistent
with the aim of the Barnstable Subdivision Regulations to retain as much as possible the rural
character of such small private ways.
I am happy to answer any questions about the matters covered in this letter at the hearing this
evening.
Thank you for your attention to this matter.
Best,
Christopher Senie