Easements

The Massachusetts Land Court has held that an owner can acquire the right to collect and discharge surface water onto neighboring land by prescription if this continues without permission by the servient estate owner and the other requirements for prescriptive easements are met. JPM Dev., LLC v. Nemetz, 2018 WL 4892726 (Mass. Land Ct. 2018). However, in a companion case, it emphasized that the amount of discharge is set by the historic use throughout the prescription period and any increase in that use is a trepass. Putney v. O’Brien, 2018 WL 6183338 (Mass. Land Ct. 2018).

In a case that rests on neighborhood norms and prescriptive easement doctrine, the Massachusetts Land Court has held that while an easement owner can maintain an easement, the easement owner here could not pave the road even though the unpaved road had holes that made it difficult to drive and had damaged the easement owner’s car. Unpaved roads were common to the area and desired by the owner of the servient estate and the easement had been obtained by prescription over the unpaved road. In effect, the court held that paving the road would exceed the uses the prescriptive easement owner had been making of the property. Ferris v. Bernstein, 2018 WL 6332991 (Mass. Land Ct. 2018).

Applying the rule in M.P.M. Builders, LLLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004) and the Restatement (Third) of Property (Servitudes) §4.8(3) (2000), a court has held that a servient estate owner may not relocatee an easement without the consent of the easement owner when it would diminish the utility of the easement. Randon v. Kiley-Ladd, 2018 Mass. LCR LEXIS 152, 2018 WL 3567179 (Mass. Land Ct. 2018). The court found as a factual matter that the proposed relocation would diminish the utility of the easement and, because the owner of the easement objected, the relocation would not be allowed.

A Massachusetts appellate court had the difficult tasking of deciding whether a view easement prohibited all structures or only structures over eight feel high. MacLean v. Conservation Comm’n of Nantucket,(Mass. App. Ct. 2018). The easement language created a “view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8’) feet from existing grade upon and over said lot.” The court held that ” the absence of a comma after the word ‘structures’ combined with the use of the term ‘and/or’ makes it unclear whether the eight-foot height restriction applies only to vegetation or to structures as well.” Id.at 3. That ambiguity made the meaning of the language a question of fact to be determined by the trial court on remand.