In Majestic Oaks Homeowners Ass’n v. Majestic Oaks Farms, Inc., 530 S.2d 3 435 (Ky. 2017), covenants for a residential subdivision creates easements that were subject to abolition by a supermajority vote of the homeowners. The Kentucky Supreme Court saw no reason not to allow easements to be made defeasible and upheld the power of the association to end the easements.
In Bedard v. City of Boise City, 403 P.3d 632 (Idaho 2017), the court recognized that a tenant who is empowered to grant an easement of access to property has no power to make that easement last beyond the term of the tenant’s rights in the property. Once the tenancy terminates, so does the easement. The tenant has no possessory rights once the tenancy terminates and you can only convey what you own.
The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than injunctive relief and use of the easement authorized upon payment of those damages, but no facts warranted an exception and a bright line rule was viewed as predictable and as a way to avoid lawsuits to determine whether use of the easement to access after-acquired land imposed a “burden” on the servient estate.
When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this “possession” will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use — rather than full occupation or “possession” — is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the presumption that use if permissive in the absence of statements or actions that show that it is nonpermissive and found no prescriptive easement in the case of DiNino v. Newman, 2016 Mass. LCR LEXIS 179 (Mass. Land Ct. 2016). The court purported to apply the Massachusetts presumption that use is adverse (nonpermissive) and found that facts overcame that presumption. However, the only facts that …
Lands owned by Indian nations and held in trust status cannot be taken by the states by eminent domain, although federal statutory authority allows states to take “allotments” held by the United States in trust for individual tribal citizens for public purposes including utility easements. 25 U.S.C. §357. The Tenth Circuit has held that if the tribe (in this case the Navajo Nation) owns a fractional interest in an allotment, then the state (or its service companies) cannot use eminent domain power to take a utility easement from those allotment owners. Public Serv. Co. of N.M. v. Barboan, 2017 U.S. App. LEXIS 9204 (10th Cir. 2017). The only way to acquire such an easement is for the land to be taken by the eminent domain power of the United States or in a voluntary sale with the consent of the relevant Indian nation and required consent by the United States generally exercised …
States may not take tribal land by eminent domain Read More »
While most courts have held that utility easements for electricity or telephone purposes can be used for cable television and other such purposes, see. e.g., Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo. Ct. App. 1985), a small number have gone the other way on the ground that easements are limited rights to use the land of another and that the use cannot exceed the scope of the original grant, see, e.g., Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002). The Eighth Circuit recently took the minority approach in Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795 (8th Cir. 2017), holding that a rural electric cooperative’s easements did not allow use of fiber-optic cable installed alongside electrical lines to serve the general public. The court emphasized that an easement is a “right to use land for particular purposes,” and interpreted a statute that …
Electricity easement held not to encompass use for fiber-optic cable Read More »
The Massachusetts Appeals Court has held that opening an easement to the general public may overburden it when the easement had not previously been used in that manner, giving the owner of the servient estate the chance to prove that the increased use interfered with his retained property rights in the underlying land and exceeded the scope of the rights included in the easement. Goff v. Town of Randolph, 56 N.E.3d 893 (Table), 2016 WL 4258381 (Mass. App. Ct. 2016).
The Massachusetts Supreme Judicial Court has held that an easement cannot be extended even for a short way to access land to which it is not appurtenant. When an easement is created to enable access to a particular parcel of land, it can be used only for that purpose and not to access other parcels of land even if continguous. Taylor v. Martha’s Vineyard Land Bank Comm’n, 60 N.E>3d 319 (Mass. 2016).
Massachusetts statutes regulate the enforceability of “covenants” by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30. In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail, LLC v. Home Depot U.S.A., Inc., 2016 WL 513955 (Mass. App. Ct. 2016), that these limitations do not apply to affirmative easements; rather they apply only to restrictive covenants. So when an owner of a store in a shopping center engaged in construction in a shared parking area, eliminating several parking spaces, its actions did not merely violate the restrictions on construction in the parking area but interfered with access to the parking area by other easement beneficiaries who had a right to use the parking lot without …
In Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (2014), landowners objected when an easement that had been granted for railroad purposes was converted to a trail for public hiking. An easement is a permanent right to use land owned by another for a specific purpose. State law determines how to interpret the scope of the purpose. Some states interpret a general right of way as not only giving the easement owner the right to pass over the land by walking or driving but a right to install utility lines; other states interpret the scope of the easement narrowly and would view utility lines as exceeding the scope of the easement. In addition, state law determines when an easement ends because of abandonment. Most states find that mere nonuse does not constitute abandonment. However, once state law determines that a use exceeds the scope of the easement or that …
Taking of property when an easement is expanded beyond its original scope Read More »
