Easements

Marketable title act extinguishes easement by necessity

/ Easements, Servitudes, Title Issues

In a surprising decision, the Vermont Supreme Court held that an easement by necessity must be recorded or it will be lost by operation of the state’s marketable title act. Gray v. Treder, 2018 VT 137, 204 A.3d 1117 (Vt. 2018). The facts of the case were unusual, however, because the easement in this case was not clearly visible by physical evidence of its use. That will ordinarily not be the case because easements by necessity are required to obtain access to the land and most owners will visibly use those easements to obtain access. In this case, however, because the landlocked ninety-acre parcel had remained undeveloped for the period defined by the Marketable Title Act. The court’s ruling was based on its interpretation of the statute and because it was bound by that statutory language. In addition, the statute provided the landlocked owner a method to preserve an easement by […]

Marketable title act extinguishes easement by necessity Read More »

Owners cannot create easements in their own parcels

/ Easements, Servitudes

In Fitzpatrick v. Kent, 458 P.3d 943 (Idaho 2020), an owner of of two adjacent lots recorded a grant of an appurtenant easement over the servient estate for maintenance of a pond and irrigation system to benefit the dominant lot. The Idaho Supreme Court held that this purported grant of an easement was invalid since one cannot create an easement in one’s own property. So when the owner sold the servient estate, it was not subject to the easement because the deed given to the servient estate owner did not itself reserve the easement. It also did not matter that the servient estate owner was aware of the easement and impliedly agreed to it. The opinion places formality over substance, but is based on an old property law rule whose purpose is to ensure that easements (and covenants) are created at the same moment that the owner parts company with the land

Owners cannot create easements in their own parcels Read More »

Grant of permission to use driveway 31 years after initial use did not defeat prescriptive easement claim

/ Adverse Possession, Easements

Owners who traversed a road over neighboring land to get to a public way for more than 30 years established a right to a prescriptive easement despite a grant of permission by the owner of the servient estate that occurred long after the statute of limitations had run. Betts v. Smith, 27 LCR 473, 2019 Mass. LCR LEXIS 187, 2019 WL 4546578 (Mass. Land Ct. 2019) (citing Mass. Gen. Laws ch. 187, §2 which defines the rules for obtaining an easement by prescription). There was no express easement since the party who granted the easement was the son of the owner and “one cannot convey what one does not own,” (citing O’Donoghue v. Commonwealth, 99 N.E.3d 843 (2018)). Nor could an easement by necessity be established because the original conveyance granted an easement that was never constructed and there was no evidence that that road would not have been adequate.

Grant of permission to use driveway 31 years after initial use did not defeat prescriptive easement claim Read More »

Constructed pond on mountainous terrain is an abnormally dangerous condition that renders owner strictly liable for damage caused when it ruptured after a storm and flooded the downhill property

/ Easements, Nuisance, Water Rights

The Montana Supreme Court held in Covey v. Brishka, 2019 MT 164, 445 P.3d 785 (Mont. 2019), that it was so obviously unreasonably dangerous to construct a 4.5 million-gallon constructed pond on a mountainous property that the owner was strictly liable for an “abnormally dangerous condition” when a storm caused a cascade of boulders and water onto the property lower down the hill.

Constructed pond on mountainous terrain is an abnormally dangerous condition that renders owner strictly liable for damage caused when it ruptured after a storm and flooded the downhill property Read More »

Abandonment of an easement shown when fence closes access to it

/ Adverse Possession, Easements

Owners built a retaining wall and deck that completely excluded the neighbor from use of the strip of land, thereby extinguishing the easement by prescription since these acts “render[ed] use of [the] easement practically impossible” for the statutory period.  Giannelli Mgmt. & Dev. Corp. v. MPA Granada Highlands, LLC, 21 LCR 211, 216, 2019 Mass. LCR LEXIS 82, 2019 WL 1995535 (Mass. Land Ct. 2019). The court also found the easement was also extinguished by abandonment because the conduct of the easement owner showed an “intent to abandon the easement by acts inconsistent with the continued existence of the easement.” 21 LCR at 216. “Nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate.” However, an “extended period of nonuse is a factor to consider in determining whether an easement has been abandoned,” especially when combined with “acquiescence to the use

Abandonment of an easement shown when fence closes access to it Read More »

Easement owner who exceeds the scope of the easement can obtain new use rights by prescription

/ Adverse Possession, Easements

Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni,  27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another’s land are nonpermissive unless evidence of permission is present.

Easement owner who exceeds the scope of the easement can obtain new use rights by prescription Read More »

No easement by necessity to access fire escape

/ Easements

No easement by necessity exists that would allow a condo owner to pass through another condo to reach a fire escape. Nor was there an express easement even though the condo documents gave the unit owner the right to use the fire escape. Chamberlain v. Badaoui,  95 Mass App. Ct. 670, 2019 Mass. App. LEXIS 93, 2019 WL 3334700 (Mass. App. Ct. 2019). No express right to go through the neighboring unit to get to the fire escape was created and the court refused to create one by implication. Instead, the plans showed a second exit to the interior stairway.

No easement by necessity to access fire escape Read More »

Trespass to use mineral rights one property to extract minerals from a neighboring parcel

/ Easements, Trespass

The West Virginia Supreme Court held that a mineral owner or lessee that has the right to use the surface of one parcel to extract minerals or oil or gas from that parcel does not have the right to use that access to take minerals from neighboring parcels whose owners conferred no such rights. EQT Production Co. v. Crowder,2019 W. Va. LEXIS 271 (W.Va. 2019)

Trespass to use mineral rights one property to extract minerals from a neighboring parcel Read More »

External stairway encroachment on neighboring land by one foot is allowed to remain with damages only for the trespass victim

/ Easements, Trespass

A Massachusetts court has found that a one foot encroachment on neighboring property by a new external stairway on a building is de minimus because the alley is hardly used, and the encroachment is both small and necessary to make the stairway consistent with the building code. Krieger v. Lanark LJS LLC, 2019 Mass. App. Unpub. LEXIS 345, 2019 WL 1976015 (Mass. App. Ct. 2019). A claim for injunctive release to move the encroachment was denied for those reasons and also because the encroaching owner had acted innocently, relying on an incorrect survey, and did not know that the stairway would extend onto the neighbor’s land. If the encroachment had been significant, an injunction would have been issued for it to be removed, even though it was built in a good faith belief that it was on the builder’s land. Here the encroachment was not significant because “the unlawful encroachment [was]

External stairway encroachment on neighboring land by one foot is allowed to remain with damages only for the trespass victim Read More »

Easement by necessity extinguished by marketable title act

/ Easements, Servitudes, Title Issues

Vermont’s marketable title act, Vt. Stat. tit. 27, §604(a), allows preservation of claims established more than forty years ago if they are re-recorded but does not require easements to be re-recorded if they are visible or evidenced by a “recorded agreement.” In Gray v. Treder, 2018 VT 137, 2018 Vt. LEXIS 237 (Vt. 2018), the Vermont Supreme Court held that easements by necessity fit into neither of those categories and thus need to be re-recorded every forty years to preserve them. While the case resulted in a landlocked parcel, the Court found the statutory policies of clearing title to be more important than ensuring access to a landlocked parcel.

Easement by necessity extinguished by marketable title act Read More »

Scroll to Top