New England stone walls along roads

No authoritative source, sorry. But if you want my opinion, I would offer that it is likely due to ownership of the wall itself. Between private lots it would be a joint ownership and maintenance responsibility. Along R/W it would provide that the wall is entirely private owned and is that owner's responsibility.

Here on the left coast we have similar conventions in that fences between private lots are typically centered on the lot lines. Along State rights of way, fences are placed outside of the R/W, on the private land owners side and the fence is thereby the private owner's responsibility. This is borne in part for the liability of keeping livestock off the road being the owner's responsibility for fence upkeep.
However, a notable exception is along access-controlled rights of way. On these, the fence is constructed on the State's side of the R/W line as the State demands control over fence condition.

I have always held the face of the wall along the row. I seem to remember that there is a nh supreme court case that established that but I forget the reference at the moment.

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Gromaticus, post: 364121, member: 597 wrote: So does anyone know of any authoritative source for this rule?

Has it ever been contested in court? Therein; you will most likely find your answer.

Ask yourself: what will I say to the judge, when he asks: why'd you do it that way?

When I surveyed in New England (1984-88), we typically measured to the centerline of all stone wall lines, unless drill holes were found or expected to be found, except in the cases of ones bordering long used roads in which case we also captured shots at the face of the walls on both sides in areas where it was distinct. We were taught this by our mentors due to their longer exposure to the trends in their area.

I distinctly recall performing a right-of-way survey over a few week period along the road between Concord and Boston, much of which followed the original old path that the British army marched (one way and ran the other direction) during these early skirmishes. The maps found in the Registry's for "Old Boston Road" or "The Road to Boston" were invaluable and many depicted physical features like stone walls and structures. Upon analyzing the field data, it became very apparent that the "2 rods" (or 33 feet) was intended to be between the faces of the walls and we came to believe that this width was dictated by the minimum required width necessary for modes of travel at the time to allow sufficient two way travel or efficient movement of troops and support personnel.

Of course, those roads at the time were not necessarily determined to be "public" in the same manner as how they are referenced today. And typically, we noted these as "Variable Width" primarily to match existing records.

I was under the impression that the 2 rods or 33 feet measurement derived in Europe and maybe that book, the History of Measurements, mentions the origin. I have it somewhere in my library and read most of it some years ago...maybe that is the source of my memories.

I have found that the "variable width" road in Mass. is bit more myth than reality. In many cases, the roads were laid out, you just have to dig through the old town records to find them, which surveyors in this state have historically not done. Frequently, these old records refer to "the new road running from Ebenezer Doe's farm to Abijah Schmoe's farm" so it can be very difficult to sort out which road belongs where. Interestingly, I've found a number of old roads that had layout widths considerably wider that the stone walls would lead one to think. It was common in the early colonial days to have 3 to 4 rod wide layouts. The idea being to clear the trees from the full width of the layout so that the ground would dry out faster in the spring. Years later, when the fields got cleared, the farmers sometimes built their walls as close to the travelled way as they could, to maximize their planting space / pasturage. Still later, after great swaths of land were deforested, the "shade tree" law was passed to provide travelers some relief from the sun.

One example is Sandy Pond Road in Lincoln & Concord. To look at it, you wouldn't guess it was laid out 4 rods wide in the early 1700's. No stone walls along much of its length, however, just lawns and landscaping where there are houses.

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Real property law prefers the private ownership of land. The public gets what the public needs, whatever is left is private. If the public needs a 2-rod road, then the public's need would require an unobstructed width. The walls would be constructed to allow the unobstructed width for the public with the entire wall falling on the private ownership side of the line.

Walls separating private ownership would be equally burdened upon each owner, therefore the wall is centered on the line. Each owner is responsible for maintaining their portion of the wall. The right-hand rule was adopted in many jurisdictions to define each owner's responsibility.

Peter Lothian - MA ME, post: 364137, member: 4512 wrote: I have found that the "variable width" road in Mass. is bit more myth than reality. In many cases, the roads were laid out, you just have to dig through the old town records to find them, which surveyors in this state have historically not done. Frequently, these old records refer to "the new road running from Ebenezer Doe's farm to Abijah Schmoe's farm" so it can be very difficult to sort out which road belongs where. Interestingly, I've found a number of old roads that had layout widths considerably wider that the stone walls would lead one to think. It was common in the early colonial days to have 3 to 4 rod wide layouts. The idea being to clear the trees from the full width of the layout so that the ground would dry out faster in the spring. Years later, when the fields got cleared, the farmers sometimes built their walls as close to the travelled way as they could, to maximize their planting space / pasturage. Still later, after great swaths of land were deforested, the "shade tree" law was passed to provide travelers some relief from the sun.

One example is Sandy Pond Road in Lincoln & Concord. To look at it, you wouldn't guess it was laid out 4 rods wide in the early 1700's. No stone walls along much of its length, however, just lawns and landscaping where there are houses.

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This is interesting Peter. I've seen quite a few like this and what you say makes a lot of sense. I remember recovering monuments intended to be along the right-of-way further away from the travelled portion. Though in some of the cases I previously referred to, there were old homes and meeting houses, etc. that are very difficult to drive by without hitting today that were further from the travelled way two hundred years ago.

Thanks for posting.

JBStahl, post: 364147, member: 427 wrote: the public needs a 2-rod road, then the public's need would require an unobstructed width. The walls would be constructed to allow the unobstructed width for the public with the entire wall falling on the private ownership side of the line.

This seems like a logical explanation.

JBStahl, post: 364147, member: 427 wrote: The right-hand rule was adopted in many jurisdictions to define each owner's responsibility.

I had to Google this - I couldn't figure out what magnetic forces or screw threads had to do with property lines! Interesting. I've probably never heard of it before since no one around here actually maintains their fences (or walls)!

Gromaticus, post: 364121, member: 597 wrote: From the "How many of you prove all found monuments" thread:

Good idea! I have an old "that's how we always do it" question I've been wondering about for decades.

Here in New England, we have 100+ year old field stone walls all over the place. When these are used for property lines, surveyors will use the centerline of the wall for the property line location, as one would expect.

However, at least in my area of Massachusetts, there is an exception to the middle-of-the-wall rule: sometimes walls were built on both sides of a road. The roads eventually became public, but no layout was ever prepared. The walls are surveyed, and the road between them is called "variable width".

BUT! The FACE of the wall on the street side (not the middle) is usually used for the wall location, thus placing the wall itself outside of the road right-of-way. I've asked several surveyors in my career WHY this is done, but nobody seems to know ("That's the way we've always done it"). One surveyor once suggested that if you measure between the wall faces, you will find that it's about 2 rods, which shows the wall builders intent to make a 2 rod road. Well, sometimes it is. Sometimes it's wildly variable, both more and less than 2 rods.

So does anyone know of any authoritative source for this rule? I've never been able to find one.

The walls only matter (in the variable width sense) if it's a user/prescriptive road (the majority in New England I would guess). The public gets what they've used, and sometimes whatever additional for maintenance. The wall can't be used for passage or maintenance so it's not included in the prescriptive area. I don't have cites handy, but it is in many court cases, well maybe not many. If the highway department wants to open the road further width then they have to do a taking. There is some disagreement in the courts of NY on this issue right now. Some courts are saying the user road gets 2 or 3 rods (whatever was in effect at the time), but the ones I've read with that holding did not have stone walls marking the extents of the roadway.

I believe JBStahl has it nailed down. Common sense for common usage by common people.

The right hand rule is assumed by most as being set in stone. First learned about this as a kid when helping Dad repair the right half only of a fence common with a neighbor. Imagine the landowners walking up to the midpoint of the fence from their respective sides and facing each other. Each extends his right arm to point to the portion of fence he will maintain into the future. I have found a few affidavits filed in the county records where landowners officially switched ends by agreement based on some excellent reasoning by those involved at the time of the affidavit.

What gets challenging is when there is an ownership change on one side of the fence for only a portion of its length. That really upsets the apple cart. Say the south half is sold by the owner on the east side of the fence. Now the owner on the west side has two neighbors instead of one. He had been maintaining the entire south half but now splits that in two with the new owner to only take care of the south half of the south half. Meanwhile he starts to take over responsibility for the south half of the north half which up until then had been the responsibility of the neighbor on the east. A bit later the new owner of the south half on the east side sells off the south half of that to someone else. Now the owner on the west has three owners to work with and three different responsibilities.

Wait and see if Don Poole or Spledus interject.

Peter Lothian is correct. The variable width right-of-way is a myth. There are many sources of information not usually or easily identified. Only a diligent surveyor will find that which others assume does not exist.

The variable width right of way is not a myth. For instance, I am working on a road that has varying widths, between 33', 40' and 50' depending on where you're working. That is when I label a road "Public Way, Variable Width."

Stone wall on ways, public or private, define use, but not ownership, necessarily. Stone walls on property lines are the same. Typically I will hold the centerline of a stone wall, linear regression at least, but never have I held the face of a wall unless it's explicitly defined that way.

We, in MA, do have some cases and even some legislation, on fences and walls, but they mostly are irrelevant since the courts will decide each case on it's own merits.

That will probably be the extent of my interjecting 🙂

Dtp

I have definitely surveyed roads that were declared variable width based on the stone walls. Might a deep search of the town archives turned something up? Maybe, but I was just the party chief at that point. It would not surprise me at all that some surveyors don't find those old records. Some might not even search.

The myth is that it protects the public to research back to the King's grant, find a one mention of the road being 4 rods and then declare that a long honored boundary, the physical wall, is to be ignored.

Being right is not as important as keeping the peace. I do the research, find the call if it can be reasonably obtained, then hold the road side face.

New Jersey has Colonial Legislative Acts starting in 1673 dealing with the layout of roads and highways including the statutory width of the right of way. I would imagine Massachusetts would have similar Colonial Acts for the creation of roads.

Stone walls are very good evidence of the location of the traveled way of the road at the time the walls were built. In NJ early Kings roads were laid out to a width of either 4 or 6 rods the purpose of the wide right of way was to clear the forest canopy so the sun would dry the road bed. With a traveled way of less than a rod I find it hard to believe that a farmer wouldn't plant his crops or extend his pasture into the right of way.

The original question concerned the "face" or "middle" of the wall. As a practical matter most people in Mass use the middle while some in neighboring NH use the face. I use the middle in reliance upon MGL Ch.86 Sec.2.

Section 2. If buildings or fences have been erected and continued for more than twenty years, fronting upon or against a highway, town way, private way, training field, burying place, landing place, street, lane or alley, or other land appropriated for the general use or convenience of the inhabitants of the commonwealth, or of a county, city, town or parish, and from the length of time or otherwise the boundaries thereof are not known and cannot be made certain by the records or by monuments, such buildings or fences shall be taken to be the true boundaries thereof.

My interpretation is that the wall becomes the monument and without a specific call the center of the monument should be used.

This statute also comes into play in the variable width discussion. I agree with Peter in that most early descriptions called for a particular width. Good luck finding a town clerk to spend the time helping you find a 1700s road description. Even if you do find the description good luck getting it on the ground. The next best thing is to rely on the walls and Ch.86 Sec.2.

Here is a 1788 layout I've been working with.

Hack

Hack, post: 364576, member: 708 wrote: The original question concerned the "face" or "middle" of the wall. As a practical matter most people in Mass use the middle while some in neighboring NH use the face. I use the middle in reliance upon MGL Ch.86 Sec.2.

Section 2. If buildings or fences have been erected and continued for more than twenty years, fronting upon or against a highway, town way, private way, training field, burying place, landing place, street, lane or alley, or other land appropriated for the general use or convenience of the inhabitants of the commonwealth, or of a county, city, town or parish, and from the length of time or otherwise the boundaries thereof are not known and cannot be made certain by the records or by monuments, such buildings or fences shall be taken to be the true boundaries thereof.

My interpretation is that the wall becomes the monument and without a specific call the center of the monument should be used.

This statute also comes into play in the variable width discussion. I agree with Peter in that most early descriptions called for a particular width. Good luck finding a town clerk to spend the time helping you find a 1700s road description. Even if you do find the description good luck getting it on the ground. The next best thing is to rely on the walls and Ch.86 Sec.2.

Here is a 1788 layout I've been working with.

Hack

If you get the Annotated Code you may find out this is a restatement of common law. The Annotated Code will also have case cites so you can see how the Courts are applying this code section.

Hack, post: 364576, member: 708 wrote: The original question concerned the "face" or "middle" of the wall. As a practical matter most people in Mass use the middle while some in neighboring NH use the face. I use the middle in reliance upon MGL Ch.86 Sec.2.

Section 2. If buildings or fences have been erected and continued for more than twenty years, fronting upon or against a highway, town way, private way, training field, burying place, landing place, street, lane or alley, or other land appropriated for the general use or convenience of the inhabitants of the commonwealth, or of a county, city, town or parish, and from the length of time or otherwise the boundaries thereof are not known and cannot be made certain by the records or by monuments, such buildings or fences shall be taken to be the true boundaries thereof.

My interpretation is that the wall becomes the monument and without a specific call the center of the monument should be used.

This statute also comes into play in the variable width discussion. I agree with Peter in that most early descriptions called for a particular width. Good luck finding a town clerk to spend the time helping you find a 1700s road description. Even if you do find the description good luck getting it on the ground. The next best thing is to rely on the walls and Ch.86 Sec.2.

Here is a 1788 layout I've been working with.

Hack

I would only add that unless a specific call, or, the monument is of a type and/or in a location where the edge makes more sense or is traditionally used. For instance, would you also hold the center if it was a building wall as mentioned in the statute? If not, holding the center of the stone wall becomes a bit more tenuous I think; for the same reason (only a difference in degree) that you would have to destroy something to get the full public width.