If no deed or plan fixes the width, a judge can set it based on how the way was created and what is reasonably needed to use it, including two way travel. The Appeals Court upheld an order requiring neighbors to remove a stone wall they built inside the layout of a private dirt road. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
Elmwood Avenue is a private packed dirt road in Oak Bluffs on Martha’s Vineyard. The plaintiff lives on one side and the defendants live on the other. Around 2013 the defendants put hay bales between a utility pole and the traveled path, and after the plaintiff objected, they replaced the bales with a stone wall right beside the traveled way. The wall kept cars from pulling over to let others pass and kept people on foot from stepping aside. After a trial, eighty one exhibits and a site view, a Land Court judge found the wall was inside the road’s layout and ordered it removed.
What the court decided
The Appeals Court affirmed in Egan v. Seidman, No. 24-P-379 (Mass. App. Ct. Aug. 4, 2025) (Rule 23.0 decision).
Courts can fix the bounds. When no agreement or instrument sets the dimensions of a way, the court may fix them, and the extent of an easement depends on how it was created. Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443 (1990). The judge should set dimensions reasonably necessary to enjoy the property served, and should not freeze the way to the uses or vehicles common when it was created. Cater v. Bednarek, 462 Mass. 523 (2012). What width allows suitable and convenient use is a question of fact for the trial judge. Dunham v. Dodge, 235 Mass. 367 (1920).
How this easement was created. Both sides agreed the owners on the road have a right to pass along it. The judge found the right came from a developer’s recorded plans from 1871, 1906 and 1934, which divided this part of Oak Bluffs into house lots and roads. The parties’ deeds referred to the 1906 plan. The plans were not accurate surveys, so they could not fix the exact width.
Two way travel and utility poles. The judge set the eastern edge at the plaintiff’s lot line, relying on a surveyor. He then found the way should allow travel in both directions, on foot or by vehicle. That made sense because the southern part of the road serves several homes, a vacant lot and connecting streets. He also credited testimony that the utility poles belong inside the layout, since a private way serves residents’ utilities. So the easement runs five feet west of the pole near the defendants’ house, and the wall, built east of the pole, was inside it.
Removal was a proper remedy. A court may require removal of structures that permanently encroach on an easement and interfere with its use. Highland Club of W. Roxbury v. John Hancock Mut. Life Ins. Co., 327 Mass. 711 (1951). The Land Court has power to grant injunctions. G.L. c. 185, § 25. The defendants argued that other objects along the road were left alone. The court said the wall was a specific interference, and the judge did not have to fix every other encroachment first.
What this means for you
If you live on a private road, the traveled path may be narrower than your legal right of way. A neighbor who builds a wall, fence, planter or boulders along the edge may be building inside the easement, even if the road looks wide enough for one car.
If you are thinking of landscaping the edge of a private way in front of your house, be careful. Your deed and the old subdivision plans may give every owner on the road rights over that strip. A court can order you to remove what you built.
These cases depend on old plans, deeds, surveys and how the road is actually used today. A site view and a credible surveyor carried the day here.
What to do now
- Pull your deed and every plan it refers to from the registry of deeds.
- Photograph the road, the traveled path and any new structures, with dates.
- Object in writing as soon as a neighbor starts building near the way.
- Hire a surveyor before you build near a private road, or before you sue.
- Keep records of how the road is used, including two way traffic, deliveries and service trucks.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
