The Massachusetts Land Court granted a prescriptive easement to neighbors who crossed a path on foot or on bicycle to get to the waterfront. Fantoni v. Assad, 2015 Mass. LCR LEXIS 108, 2015 WL 4208469 (Mass. Land Ct. 2015). The owner of the servient estate was aware that neighbors were using the path but did not stop them or object until an altercation broke out when one of the walkers kicked a neighbor’s dog. The court applied the traditional rule presuming the use to be adverse in the absence of any evidence of consent or permission. Once open use is established for the twenty-year statutory purpose, the burden is on the servient owner to show that permission was given for the use. If no permission can be shown by the servient owner, the access is presumed to be adverse. A minority of states now go the other way, presuming that limited use of another’s property is permissive.
The court rejected a claim that the defendants had an implied easement. Although the servient estate owner did open the wall between the properties to create access to the disputed path, that was done for his convenience, to bring construction materials to his property and not intended to provide access to the neighboring subdivision or any of its lots, even those he owned.