This Week's Q & A

Q: There is a right of way running across a small portion of my property that was recorded in 1864. As far as I know, no one has ever used that right of access, nor has anyone ever objected to the fence I installed after I purchased my home more than 30 years ago. Is it true, as someone told me, that a right-of-way will expire after 20 years if no one uses it? If not, is there any way to get rid of it, or once it's in place, does it continue forever?

A: The basic legal principle, I'm told, is, "Non-use does not constitute abandonment." The fact that no one (as far as you know) has exercised the right-of-way doesn't make it disappear. The right is still recorded and it is still in effect.

I should also point out that your installation of a fence (presumably, to block access to this legal right-of-way) also has no effect. As one title expert pointed out, if you could obliterate a right-of-way by planting a few bushes or building a fence, there would be a lot more bushes and fences around, and far fewer rights-of-way.

The only way to eliminate a right-of-way is to obtain a release from all parties affected, or to initiate legal action, either in the Land Court or Superior Court—a costly proposition, with no guarantee that you would win. All parties with an interest in the right-of-way would have to be notified of the court action and would have an opportunity to argue against your petition. Your odds of prevailing will depend on how strong (and how valid) those objections are. The key question a court will ask is: What purpose does the right-of-way serve? If it provides access to a neighbor's property, or if it meets some public need—for example, providing access required now (or in the future) to install or repair underground pipes or above-ground railroad tracks, you might as well save your time and money. I can't imagine that a court will find in your favor.

It is not clear to me why you're so concerned about a right-of-way that, you say, hasn't been used by anyone in at least 30 years. But there is one other possibility you might consider, and that is to assert a claim to the land by "adverse possession." That would be possible if you have used the property over which the right-of-way runs for at last 20 years, as if it were your own, "in open and notorious claim of right or title." An adverse possession claim, too, would require court action, and even if you win, you won't eliminate the right-of-way; you will simply acquire some explicit rights, which you may already have, to the use of that property.