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easement materials ______________________________ Easements and Rights of Way James K. Bodurtha, Esq. Stephen M. Leecock, Esq. June 2009 2 Question #1 RIGHTS OF EASEMENT HOLDERS My client owns Lot B, and has recorded easements to “pass and re-pass with vehicles” over Lot A and Lot C. The easement areas have always been dirt, but my client is becoming increasingly frustrated with the mud and ruts, and would now like to pave the easement areas. The recorded easements are silent on the issue. May she pave over the dirt? Analysis: Allowed, as long as it does not interfere with servient estate. Easement rights include right to reasonably improve surface. Stagman v. Kyhos, 19 Mass.App.Ct. 590 (1985) (paving of an easement did not constitute trespass). Includes right to reasonably construct sidewalk and to grade, especially if necessary for enjoyment of the easement. Gullet v. Livernois, 297 Mass. 337 (1937). 3 Question #2 RIGHTS OF EASEMENT HOLDERS My client is the owner of Lot A, which has the benefit of an old recorded easement providing for access over a dirt road on Lots B, C, D, and E to a beach on Lot E. The easement is silent as to whether she may park in the easement area. Is parking implied? Analysis: Normally, the right to pass and re-pass does not imply the right to park and the entire width of the way should be left unobstructed. Delconte v. Salloum, 336 Mass. 184 (1957). May be a trespass. Implied easements, whether by grant or reservation, do not arise out of necessity alone. You must look at the : Presumed intention of the parties. The language of the instrument when read in light of the circumstances. The physical condition of the premises. The knowledge which the parties had. The burden of proving the existence of an implied easement is on the party asserting it. 4 Question #3 RIGHTS OF BURDENED PROPERTY OWNERS My client’s property is subject to a 20 foot underground utility easement. He would like to pave over the easement so as to access a newly constructed garage on the property. The terms of the recorded easement do not address the issue. May he pave over the easement area? Analysis: Yes, as long as the improvement does not “detrimentally interfere” with the appurtenant easement holder’s right. Detrimental interference is an action that results in a material increase in the cost or inconvenience to the easement holder. Cost and inconvenience of digging through pavement is not automatically deemed detrimental to easement holder. See Western Massachusetts Electric Co. v. Sambo’s of Massachusetts, Inc., 8 Mass.App.Ct. 815 (1979). 5 Question #4 EASEMENT BY ESTOPPEL My client is a developer who wishes to buy the remaining unimproved lots of a large subdivision. This unimproved portion contains several paper streets. The developer wishes to redraw and eliminate the lot lines essentially turning these unimproved lots into one larger lot in order to accommodate a large building and parking lot. In conveying out the previous lots the owner failed to provide in her deeds any express easement language and no reservation of the fee in the roadway. What are the rights of the other lot owners in the paper streets? What are developer’s options? Analysis: Elements of Easement by Estoppel: property description shown on plan or bounding on way; way laid out on plan; chain of title out of the same grantor; no reservation of fee by grantor; Casella v. Snierson, 325 Mass. 85 (1949): “… when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such a street or way…..however an easement by estoppel does not necessarily carry with it the right to use a way beyond the limits of the plaintiffs’ property. That determination depends on extrinsic facts, as they existed at the time of conveyance” i.e. consideration of the extent to which the easement is necessary to enjoyment of the plaintiffs’ premises and whether the way referred to at its distant end connected directly or indirectly with a public way The property description does show on plan and bounding on a way. Way is laid out on a plan. 6 Chain of title is out of the same grantor. There is no reservation of fee by the grantor. Therefore, the other lot owners have rights to pass and re-pass in the paper streets, only limited by the extent necessary for enjoyment of the property. DEVELOPER’S OPTIONS: Obtain releases from the other lot owner’s in the subdivision Try to prove abandonment Judicial remedy… Quiet title action 7 Question #5 EASEMENT BY PRESCRIPTION The mortgage inspection plan of the property my client is purchasing shows a “traveled dirt drive” through the property, from the street to a large tract of land in the rear of the property. If my title examination doesn’t reveal any easement of record, does my client have to worry about the dirt drive? Analysis: Beware of this type of adverse possession with respect to easements. Court must find use of the claimed easement area was (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years. See M.G.L. c. 187, § 2. The claimant bears the burden of proof on each and every element. The use must be “substantially confined to a regular and particularized route”. Stone v. Perkins, 59 Mass.App.Ct.265, 265 (2003) (citing Hoyt v. Kennedy, 170 Mass. 54, 56-57 (1898)). However, occasional departures from the route claimed will not defeat the claim if the regular route was used for a substantial amount of the 20 years. Lawrence v. Houghton, 296 Mass. 407, 408-409 (1937); but see Boothroyd v. Bogartz, 68 Mass.App.Ct. 40, 859 N.E.2d 876 (2007) (Review denied by 448 Mass. 1107, 864 N.E.2d 22 (2007)), for scenario where route was not regular or particularized enough. Much litigation over whether “notorious” element is satisfied. For the use to be found notorious, it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property. Foot v. Bauman, 333 Mass. 214, 218, 129 N.E.2d 916 (1955). “It is not necessary that the use be actually known to the owner for it to meet the test for being notorious.” Ibid. It is enough that the use be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use. “The extent of openness and notoriety necessary for the 8 acquirement of title by adverse use varies with the character of the land.” Tinker v. Bessel, 213 Mass. 74, 76, 99 N.E. 946 (1912). It is much more difficult, for example, to obtain an easement by prescription over heavily wooded land. See Boothroyd, supra. Use must be sufficiently “adverse” to put the owner on notice that user is claiming a right to the use, as opposed to a permissive use. See Shaw v. Solari, 8 Mass.App.Ct. 151 (1979); Houghton v. Johnson, 71 Mass.App.Ct. 825, 887 N.E.2nd 1073 (2008). Although use must be continuous and uninterrupted for 20 years, it does not need to be constant. Bodfish v. Bodfish, 105 Mass. 317 (1870). It might be a continuous weekend use, or a continuous seasonal use. Infrequent and isolated incidents of use, however, will not be sufficient to satisfy the continuous and notorious elements. See Houghton, supra. Unlike a claim of adverse possession of a fee interest which requires proof of the additional element of “exclusive” use, exclusivity is not required in a claim of prescriptive easement; it can be obtained on property which is burdened by other easements. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542 (1911). Judicial decree required to establish the easement. The decree will determine the scope of the easement in conformity with the use established (was the use for pedestrians only? was vehicular access established? was it limited to certain seasons? was it limited to a particular purpose, such as hauling gravel? (see Carson v. Brady, 329 Mass. 36 (1952)). An easement by prescription can not be obtained over registered land. M.G.L. 185 § 53. Note, however, that a registered land easement may be extinguished by abandonment. Lassell College v. Leonard, 32 Mass.App.Ct. 383 (1992); Carlson v. Fontanella, 74 Mass.App.Ct. 155, 904 N.E.2d 792 (2009). 9 Question #6 ABUTTING SUBDIVISIONS My client purchased Lot A consisting of 10 acres. He wishes to subdivide the property using a paper street through abutting Lot B to access a public way. Lot A does not derive out of the same chain of title as Lot B. The way is not shown on any plans for Lot A. However, the plan for Lot B shows the way running from the public street to the boundary line of Lot A. Previous owners of lot A have never made use of this paper street. May the owner of Lot A make use of the paper street on Lot B? Analysis: Absent a specific grant, a subdivision plan showing a roadway touching an abutting piece of property does not give those in the subdivision a right of access over the abutting parcel of property. The mere approval and recording of a subdivision plan which refers to a roadway does not convey an easement in favor either of those owning property abutting the subdivision or the public generally… Patel v. Planning Board of North Andover, 27 Mass.App.Ct. 477 (1989, citing Uliasz v. Gillette, 357 Mass. 96 (1970)). Potential issues: Easement by estoppel fails because Lot A and Lot B are not of the same chain of title. Easement by implication fails because the parcels are not of the same chain, other access is available and there is no prior use. Easement by prescription fails because there is no adverse use. Easement by necessity fails because there is alternative access. 10 Question #7 EASEMENT BY NECESSITY The owner of property fronting on a public way divided the property into two parcels, Lot A and Lot B, and conveyed the rear Lot B to an excited purchaser. Lot A has frontage along the public way; Lot B, however, is landlocked. What rights of access, if any, does the owner of Lot B have over Lot A to the public way? What if there is an existing dirt road crossing Lot A, from the public road to Lot B? Analysis: “[t]he law presumes that one will not sell land to another without an understanding that the grantee shall have a legal right of access to it, if it is in the power of the grantor to give it, and it equally presumes an understanding of the parties that one selling a portion of his land shall have a legal right to access to the remainder over the part sold if he can reach it in no other way.” Davis v. Sikes, 254 Mass. 540, 544-546 (1926); citing New York & New England Railroad v. Railroad Commissioners, 162 Mass. 81, 83 (1894). Consequently, an easement by necessity is “said to arise (or be implied) ... when a common grantor carves out what would otherwise be a landlocked parcel.” Bedford v. Cerasuolo, 62 Mass.App.Ct. 73, 76-77, 818 N.E.2d 561 (2004), quoting from New England Continental Media, Inc. v. Milton, 32 Mass.App.Ct. 374, 378, 588 N.E.2d 1382 (1992). An easement by necessity may be implied if the court can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create one. To make this deduction, the court requires (1) that both dominant and servient estates once were owned by 11 the same person or persons, i.e., that there existed a unity of title; (2) a severance of that unity by conveyance; and (3) necessity (i.e., landlocked, with no other access) arising from that severance, all considered “with reference to all the facts within the knowledge of the parties respecting the subject of the grant, to the end that their assumed design may be carried into effect.” Orpin v. Morrison, 230 Mass. 529, 533, 120 N.E. 183 (1918). Where parties can not agree on location of right of way, but the right is clear, a court of equity can determine what is reasonable under the conditions disclosed, and locate the way accordingly. McKenney v. McKenney, 216 Mass. 248 (1913). Old Colony St. Ry. v. Phillips, 207 Mass. 174, 181, 93 N. E. 792. If an existing way adequately services the landlocked property, court is likely to locate the easement by necessity on the existing way. Fact patterns giving rise to easements by necessity less frequent since adoption of subdivision control law by towns and cities. 12 Question #8 M.G.L. Chapter 183, § 58 A three lot subdivision plan shows a paper street entitled “future roadway” between Lot 1 and Lot 2. The Smith property to the rear is for sale. My client wishes to buy the Smith land and the future roadway for access. Lot 1 sold in 2005. Lot 2 sold in 2006. Both deeds contained a bounding description along the way. The developer did not reserve any fee in the future roadway in either deed. Who owns the roadway? Analysis: In Tattan v. Kurland, 32 Mass.App.Ct. 239,243 (1992) the Appeals Court of Massachusetts stated that M.G.L. c. 183, § 58 “mandates that every deed of real estate abutting a way includes the fee interest of the other grantor in the way- to the centerline if the grantor retains property on the other side of the way or for the full width if he does not- unless the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.” M.G.L. c. 183, § 58 Real estate abutting a way, watercourse, wall, fence, or other monument: Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if 13 the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line. Lot 1 and Lot 2 have bounding descriptions with no reservation of the fee in the roadway by the owner, so as a result of the conveyances and the statute, the owner of Lot 1 and the owner of Lot 2 each own halfway into the roadway. Therefore, the developer has no remaining title to the property. 14 Question #9 M.G.L. Chapter 183, § 58 Prior owner had a large single parcel of property. A town way was placed through the middle of the property in 1890. The instrument of taking for the way did not specify what was taken by the Town – the fee or only an easement. The property was subsequently subdivided into Lots A, B, C, D & E; the descriptions for Lots A, B, and C abutted the town way, and did not reserve any fee therein. The town way was later “discontinued”. My client wishes to purchase Lot A and Lot B. However, the owner of Lot C has recently erected a fence on the westerly side of the discontinued road, so as to obtain complete control of the discontinued road. What rights does my client have in the discontinued road? What if instead of the taking of an easement, the fee in the roadway was taken? Analysis: Between fee and easement, the presumption is easement rights in the town. Inhabitants of Town of Lexington v. Suburban Land Co., 235 Mass. 108 (1920), Opinion of Justices, 208 Mass. 603 (1911). Discontinuance is dealt with under M.G. L. c. 82, § 21. The selectmen or road commissioners of a town or city council of a city may lay out, relocate or alter town ways, for the use of the town or city, and private ways for the use of one or more of the inhabitants thereof; or they may order specific repairs to be made upon such ways; and a town, at a meeting, or the city council of a city, may discontinue a town way or a private way. Since the town only took an easement and not the fee, the effect of the discontinuance is simply to extinguish rights of the public to use the way; the underlying fee is unaffected. Perley v. Chandler, 6 Mass. 454 (1810). Consequently, in determining ownership of the fee, the orphan 15 fee statute, M.G.L. c. 183, § 58, as discussed in the previous question, would be applied, and A, B and C would each own to the center of the discontinued town way, subject to rights of way in each other. Consequently, C could be compelled to remove the fence from the area of the discontinued way. If the fee in the way was originally taken by the town instead of an easement, the town would need to abandon its title in the way in addition to discontinuing the public use thereof. For more detailed reading on this subject, see Notes on Highway Law, F. Sydney Smithers, Complex Title Problems, MCLE (2000). 16 Question #10 TERMINATION OF EASEMENT My client wishes to purchase Lot D and Lot E. Old plans show a cart path beginning in Lot C and continuing through Lot D and Lot E with a reference to the recorded deed with a reservation. The deed reservation states that the cart path is for “use by teams of horses and oxen for watering the same at the pond” on Lot E. Therefore, the easement is appurtenant to Lot C. My client wants to build a swimming pool over the cart path on Lot D. Lot C is now a multi-unit apartment building. Your survey shows there in no pond on Lot E. What is the status of the easement? Analysis: Extinguishment by Frustration of Purpose: Total and permanent impossibility of enjoyment of an easement limited by its terms to its particular purpose(s). When a right in the nature of an easement is incapable of being exercised for the purpose for which it was created, the right is considered to be extinguished. MakepeaceBros. v. Barnstable, 292Mass. 518. (1935). Extinguishment by Abandonment? An easement derived from a grant is not lost by mere nonuse, but may be lost by abandonment Intention to abandon must appear, any act on the part of the dominant owner inconsistent with the continued existence of the way may operate as such abandonment. 17 Extinguishment by Court Judgment: Declaratory Judgment M.G.L. c. 231A. Action to Quiet title M.G.L. c. 240, §§ 6-10. 18 Question #11 TERMINATION OF EASEMENT My client owns Lot A, Lot B and Lot C. An old plan of record shows an easement for a cart path for the benefit of Lot A and Lot B in order to reach Lot C. Is the easement still valid? If my client conveys Lot C, does the easement apply? Analysis: Termination by Merger. Merger of the dominant and servient estate will extinguish the easement; an owner of property cannot have an easement over his own property. Cheever v. Graves, 32 Mass.App.Ct. 601, 592 N.E.2d 758 (1992). If the property is re-subdivided, the easement is not reconstituted. “Once an easement is extinguished by merger, it cannot come into existence again merely by severing the dominant and servient estates. For the easement to arise again, it must be created anew by express grant, by reservation or by implication.” Ibid at 607 (1992). 19 Question #12 TERMINATION OF EASEMENT Lot C has the benefit of an easement over Lots D and Lot E. The town wishes to take by eminent domain Lot D and Lot E for the development of a municipal office building. Is the easement wiped out by the taking? Analysis: Termination by Eminent Domain Generally, an eminent domain taking in fee simple extinguishes all other interests in the subject property. In particular, where an easement exists, the taking of the servient estate will destroy the easement rights of the dominant estate. New England Continental Media, Inc. v. Milton, 32 Mass. App. Ct. 376 (1992). Plaintiffs who have had portions of their property taken by eminent domain have attempted to claim an easement by necessity over the taken portion where the remainder of their land has become landlocked. Massachusetts courts have essentially held that the only relief a plaintiff may receive is in the form of monetary damages. Morse v. Benson, 151 Mass. 440 (1890). If a title depends on access to locus by an easement over a private way on land of others, you should examine title to all of the other lands over which the way extends. 20 Question #13 TERMINATION OF EASEMENT Lot A is mortgaged to a bank. A general travel easement is granted to Lot B for travel through Lot A after the grant of the mortgage. When the bank forecloses it mortgage on Lot A, does the easement survive? Analysis: Termination by Foreclosure Foreclosure of mortgage on servient estate extinguishes subsequent encumbrances, including easement. Easement holder to be given notice under M.G.L. c. 244, § 14 as a “person of record…holding an interest in the property junior to the mortgage being foreclosed”. 21 Question #14 RELOCATION OF EASEMENT My client wishes to buy Lot C and Lot D, and construct a single family residence as shown. However, the ideal location for the house is over a cart path shown on a plan. There is no recorded easement and no layout of any way of record, other than the cart path on the plan. May my client relocate the easement to the rear of the house? Analysis: Possible Prescriptive easements. With no layout of way or easement of record, there is a statute of frauds problem. M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004): This case forged new law in Massachusetts. An easement cut across and interfered with the construction on three of the lots. M.P.M. offered to build two new access ways for the defendant, who refused to accept the right of ways preferring to maintain the original right of way. The question posed to the Supreme Judicial Court was whether an owner of land burdened by an easement may relocate such easement without the consent of the easement holder. The Court upended the common law principle in Massachusetts that the owner of a servient estate in Massachusetts may not unilaterally alter or move a dominant owner’s easement once the location of the easement has been fixed on the ground by accepting the modern rule as 22 proposed by the American Law Institute in the Restatement (Third) of Property (Servitudes) §4.8 (3) (2000): "Unless expressly denied by the terms of an easement, as defined in §1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created." In the absence of agreement between owners of the dominant and servient estates concerning the relocation of an easement, the servient estate owner should seek a declaration from the court that the proposed changes meet the criteria for relocation.