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  1. #1
    Join Date
    Mar 2010
    Posts
    3

    Default Dying Tree in Right of Way

    Hello,

    I live in Massachusetts and have a right of way on my property where I park my car. There is a tree on the right of way that is dying and is becoming at risk of falling. If it falls it will probably fall over my parking area and if my car is there crush it. I am trying to understand who is responsible for the maintenance of the tree if I know it is dying and at risk of falling.



    Thanks,
    Steve

  2. #2
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Dying Tree in Right of Way

    Do you have an easement or is there an easement on the property that you are using?

    Generally, the underlying property owner (dominant estate) is responsible to keep the ROW clear. If the property owner is aware that a dead tree is about to fall and does not remove it, they could be liable for damages. If it were me, I would send a certified letter to the owner advising him of the perils a dead tree could cause and ask him to remove it.

    Now back to the ROW issue. Do you have a copy of the ROW? Was the ROW granted to you specifically? Depending on the language of the easement, you may not the right to park in the ROW.

    I would try to research the ROW at the County courthouse.

  3. #3
    Join Date
    Mar 2010
    Posts
    3

    Default Re: Dying Tree in Right of Way

    Thanks for the reply. I do not have a copy of the ROW but I will go and try to find one. In the deed it states that the owner of my property is entitled to a right of way of 45 feet to be enjoyed in common, not sure if that sheds any additional light for any of you experts.

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Dying Tree in Right of Way

    Quote Quoting mudpie
    View Post
    Generally, the underlying property owner (dominant estate) is responsible to keep the ROW clear. If the property owner is aware that a dead tree is about to fall and does not remove it, they could be liable for damages.
    I agree with the proposition that, absent an agreement to the contrary, as a matter of law the owner of the dominant estate has the duty to maintain an easement. See, e.g., Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. 363 (1979) ("The owner of an easement bears the responsibility of keeping it in day-to-day repair"); Prescott v. White, 38 Mass. 341, 343 (1838). But the dominant estate is the land served by the easement, not the land underlying the easement.

    The easement here is to be "enjoyed in common" by whom? By you and the owner of the servient estate? By you and additional property owners who use the easement for access?

    A "right of way" would normally be construed as giving you rights to drive to and from your property over the land of another, but not to park on that land. If you are parking on the right of way, not on your own land, and a tree you know to be sick and diseased falls on your car, it sounds to me like the owner of the servient estate would be able to argue that you both misused the right of way and that you assumed the risk that your car would be damaged.

    If the "parking area" is on your own land, then it may be possible to argue that, without regard to the right-of-way, your neighbor has a duty to remove a tree that's obviously diseased or dying before it falls across the property line and damages your property. If the tree is entirely on the easement, and you're responsible to maintain the easement, your neighbor may be able to defend by claiming that you knew the condition of the tree, you did nothing to remedy the situation and that you assumed the risk of parking where you anticipated that it would fall.

    Contacting the owner of the tree to see if he'll remove the tree is a perfectly reasonable first step.

  5. #5
    Join Date
    Mar 2010
    Posts
    3

    Default Re: Dying Tree in Right of Way

    Thanks for the feedback.

    I have a few more questions. when trying to find a copy of the ROW what would I look for at the courthouse? I can find the deeds that reference the land plan from the owner of the other property but cannot find a specific ROW document. How would one find a specific ROW document at the registry of deeds?

    the specifics of my property and the ROW are that on my street there are 4 homes on one side of the street, on the other side is just land (about 100 ft or so that slopes down to a river). The deeds for all four homes state that there is "This conveyance is made subject to the taxes assessed as of Jan 1951; also subject to and with the benefit of a right of way forty-five (45) feet in width show on said plan to be enjoyed in common by all persons entitled thereto". All four home owners park their cars and maintain this area across the street before it slopes down to the river.

    The owner of the property across the street is a real estate LP, so I wanted to make sure I understand as much as possible so I don't open a can of worms by contacting them.

    Thanks again,
    Steve

  6. #6
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Dying Tree in Right of Way

    How would one find a specific ROW document at the registry of deeds?
    It sounds as if the document is a plan or plat which is incorporated into the deeds by reference. That may be the document you are looking for. A plan can create a right of way or easement and contain the terms as well as defining the location on the ground. If it is not recorded at the register of deeds, and the staff there has no suggestions for you, you might look to the town records. As a last resort, a local surveyor will likely be able to find it if it exists.

    But this all sounds like it originated almost sixty years ago and the details may be minimal as to answering your specific questions. As Mr. K indicates, you will need to look to case law for the answers in that situation.

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