Ownership and title to real property in Massachusetts goes back to the Mayflower Compact. As roads, ways and cart paths were created throughout the Northshore, Middlesex County and other counties, easements to and from land were created for access and passage. An easement may exist over land, privately owned waterways or in the air. An easement may be created various ways: expressly by written contract, in a grant or deed, shown on a record plan, by use over a period of years; or they may be implied or arise due to necessity. Once created, does the easement last forever or may it be lost or extinguished? The valid creation and the possible extinguishment of an easement is determined by Massachusetts statutes, case law and common law.
When an easement is created on real property in Massachusetts there is a “dominant estate”, meaning the land that is benefitted by the easement. There is also a “servient estate”, or the land that is burdened by the easement. For example if you have an easement that allows you onto your neighbor’s yard or driveway to access your property, your land is the dominant estate and your neighbor’s the servient estate. Once an easement exists there are several methods that the burdened estate can free itself.
An easement can be extinguished by adverse use or prescription over a period of 20 years or more. Massachusetts case law has confirmed extinguishment if the servient estate demonstrates “it, or its predecessors, had ‘used the way in a manner so inconsistent with the easement that it … [worked] an extinguishment of it after the lapse of twenty years.”’ Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417, 423 (1979) (quoting Patterson v. Simonds, 324 Mass. 344, 352 (1949)). ‘“[A]n easement is extinguished by a use of the servient tenement … if, and only if … (a) the use is adverse as to the owner of the easement and (b) the adverse use is, for the period of prescription, continuous and uninterrupted.”’ Yagjian v. O’Brien, 19 Mass. App. Ct. 733, 737 (1985) (quoting Restatement of Property § 504 (1944)). However, “Mere non-use [of an easement] no matter how long, will not work an abandonment.” Desotell v. Szczygiel, 388 Mass. 153, 158-159 (1958). A burden upon the easement must be inconsistent and irreconcilable with the dominant estate holder’s use for that burden to work as extinguishment of the easement. Id. at 733.
In Lemieux the servient estate holder installed gates at both ends of the easement and the gates were locked from 6:00 p.m. until 7:00 a.m. Also, telephone poles and electric transformers were constructed within the easement area; loading platforms encroached by five or six feet into the easement; stairways and alleys extended approximately three or four feet into the easement; and the servient estate holder disposed of leather by-products by putting the by-products on the easement. The Court in Lemieux concluded that these servient estates uses were open, adverse and took up approximately one half of the easement, but then held it was not considered irreconcilable with the use of the way. The court held that the easement was not extinguished by the servient estate because “occupation of land by the servient tenant [that] is not irreconcilable with the rights of the dominant tenant is not deemed to be adverse and therefore does not extinguish such rights.”
More recently, the Appeals Court issued a Summary decision in Halvarson v. Teleen, No. 15-P-1103, January 6, 2017 that analyzes extinguishing an easement. In Halvorson the issue before the Court was whether or not an express easement was extinguished by adverse use. The case was on appeal from a trial court ruling which held that the owner of the servient estate had extinguished the easement claimed by the dominant estate. In overturning the trial court’s decision, the Massachusetts Appeals Court found that no more than non-use had been shown. Although the owner of the servient estate had posted no trespassing signs and vegetation blocked a portion of the easement, the Appeals Court concluded: “The available evidence falls short of the kind of open and notorious conduct necessary to extinguish an easement by adverse possession or signal an intent to abandon the easement.”
Once an easement is created, it is a challenge to establish sufficient facts to demonstrate that the easement has been extinguished. The outcome is often fact driven and the tests used by the courts are well established in Massachusetts written opinions.