The Supreme Judicial Court of the Commonwealth of Massachusetts has held that “an easement… may be modified by the servient land holder so long as the purposes for which the easement was created are not frustrated, and the utility of the easement is not lessened.” Martin v. Simmons Properties, LLC, 2 N.E.3d 886 (Mass. 2014).
An easement may be acquired by prescription if one engages in visible (“open and notorious”) use of another’s property in a continuous manner for the period of the statute of limitations. Most state presume such uses are permissive although a growing minority of states presume permission. A crucial requirement is that the use be visible to the servient estate owner. How then could underground utility lines (which are obviously hidden) be sufficiently visible to be acquired by prescription? The Massachusetts Land Court ruled that an owner can acquire an easement by prescription for underground utility lines if physical clues on the land would put a reasonable owner on notice that the lines exist. Dunning v. Larsen, 2015 WL 5920263 (Mass. Land Ct. 2015). In this case the dominant estate owner also was using a road over the servient estate and the utility lines were underneath that road. While the lines themselves …
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The South Carolina Supreme Court has joined the majority of states that require proof by clear and convincing evidence (rather than merely a preponderance of the evidence) to obtain an easement by prescription. Bundy v. Shirley, 772 S.E.2d 163 (S.C. 2015)
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 …
In Mello v. Town of Dighton, 2015 Mass. Super. LEXIS 48 (Mass. Super. Ct. 2015), the Massachusetts trial court found sufficient evidence to conclude that an easement was abandoned. The proof in such cases is high; mere non-use does not constitute abandonment. More direct evidence of intent to abandon is required. In this case, the easement was owned by a railroad and the railroad’s bankruptcy trustees conclusively demonstrated their intent never to make use of the easement by expressly abandoning it and stating that the easement was not needed for the railroad’s operations.
A developer marketed homes as being next to a golf course with the golf course noted on sales material and the recorded plat. When the developer later tried to convert the golf course into residential lots, the homeowners sued, claiming an implied servitude. Despite the lack of any express covenant in the deeds, the court found the presence of the golf course with the designation as a “golf course” to be sufficient to find the property restricted to golf course purposes. Riverview Cmty. Grp. v. Spencer & Livingston, 337 P.3d 1076 (Wash. 2014). Similar cases include Agua Fria Save the Open Space Ass’n v. Rowe, 255 P.3d 390 (N.M. 2011); Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006).
The Texas Supreme Court has affirmed that easements by necessity exist when an owner sells a landlocked parcel that has no access to a public road. That owner (and subsequent) owners have a right to go over remaining land of the grantor to access to public way. For such a right to be recognized, there must be no alternative access to a public road. The court also found that it presumes that the parties intended to create such an easement and that evidence to the contrary would defeat the claim. (In contrast, some courts hold that owners have no power to create landlocked parcels even if that is the intent of the parties.) “To successfully assert a necessity easement, the party claiming the easement must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a …
When someone intentionally builds a building or part of a building on land owned by another, the land owner may obtain an injunction ordering removal of the trespassory structure. But when someone innocently builds a structure that encroaches on neighboring property, many courts today applied the undue hardship or relative hardshp doctrine and allow the structure to remain on the ground that land owner is partly at fault for not noticing the incursion and stopping it before substantial expense is undertaken by the innocent builder. In such cases, the court usually orders a forced sale of the land on which the building sits. See, e.g., Somerville v. Jacobs, 170 S.E.2d 805 (W.Va. 1969). However, older cases would order removal rather than a forced sale and the Rhode Island Supreme Court apparently prefers the older approach. In Rose Nulman Park Found. ex rel. Nulman v. Four Twenty Corp., 93 A.3d 25 (R.I. 2014), …
In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the two doctrine. A significant minority of courts however now reverses the presumption when a prescriptive easement is claimed on the ground that neighbors often allow neighbors to make limited uses of their property and that such neighborly accommodations are generally informal grants of permission for such uses. It seems wrong to punish …
The Montana Supreme Court has affirmed a traditional rule of property law that express easements are presumed to be permanent even if they are created for reasons that later cease to exist. In this case, the easement was originally necessary to link the property to a public road. When such easements are not created expressly, courts imply them over remaining land of the grantor to ensure that properties do not become landlocked. Such easements traditionally last as long as the necessity lasts. Express easements however are permanent even if created to link a landlocked parcel to a public road and the necessity ends because another means of access (over land of a stranger to the title) becomes available. Woods v. Shannon, 344 P.3d 413, 2015 MT 8 (Mont. 2015).
