Friday, June 20, 2008

You Can Construct a Sewer Line In Your Private Right of Way

Constructing a sewer line under a preexisting easement which allows for ingress and egress is permissible under Massachusetts General Laws c. 187, § 5.

Massachusetts General Laws c. 187, § 5 provides that the owner of property abutting a private way who has existing rights of ingress and egress upon such way “shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private way pipes, conduits, manholes and other appurtenances necessary for the transmission of . . . sewer service, provided such facilities do not unreasonable obstruct said private way or other private ways, and provided that such use . . . does not interfere with . . . the existing use by others of such way.”

A driveway easement has been ruled to be a "private way" for purposes of this statute. See Barlow v. Chongris & Sons, Inc. 38 Mass.App.Ct. 297 (1995)

This right applies retroactively to easements granted before the statute was enacted in 1973. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc. 402 N.E.2d 501 (Mass 1980). The sewer service need not be installed by a public utility service; the private owner may install the necessary pipes and conduits himself. See Robinson v. Bd. Of Health of Chatham, 791 N.E.2d 350 (Mass. App. 2003). This ability to install utilities under a right of way is intended to “reflect the importance of utilities to modern society.” Id. at 354. Thus, § 5, supported by this policy consideration and Massachusetts case law, allows an owner with a right of way to construct a sewer line under the right of way.

Thanks to Lorretta Waitr for her research.


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