Many people may not realize that in Massachusetts, "[a]n 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. 374, 376 (1992). This means that if an individual has easement rights over a parcel of land that is ultimately taken by eminent domain, those rights are terminated once the taking occurs.
Fortunately, this rule does not apply if the Order of Taking itself expressly carves out an exception--which many of them do--for existing encumbrances, such as easements of record, allowing them to continue notwithstanding the taking. Indeed, taking authorities often except from the taking deeded easements or rights-of-way and easements for utilities. Obviously, in those situations, the easement (dominant estate) holder continues to enjoy the benefits of his easement despite the fact that the servient estate will now be owned by another entity for a public use.
But a recent unpublished Massachusetts Appeals Court decision, Polchlopek v. Division of Fisheries & Wildife, 11-P-760, (Mass. App. Ct. March 6, 2012) (unpublished), reminds us that implied easements-that is, easements not expressed of record-will not benefit from these kinds of exceptions even when the Order of Taking carves them out. The outcome is that the implied easement holder is not only left without access rights that may have existed before, but in some cases becomes landlocked.
In Polchlopek, the Appeals Court did not agree with the plaintiff that her implied easement was "of record" (which was the kind of easement excepted from the DFW's taking in the Order of Taking). The plaintiff unsuccessfully attempted to use the rule of law in the seminal case of Labounty v. Vickers, 352 Mass. 337 (1967), to support her case. The Labounty case held that an enforceable implied easement exists where a deed references a plan showing the easement, even if the deed itself does not expressly grant or reserve the easement. See Labounty, 352 Mass. at 344-45. The problem for the plaintiff in Polchlopek, however, was that there was no deed recorded containing a grant of easement, nor any plan showing an easement referenced in her deed.
The plaintiff also failed to convince the court that an easement "of record" flowed from the statutory right to install utilities on implied easements to the extent that those arise "by deed". The court analyzed whether there is a difference between easements that are "of record" and those that arise "by deed".
Ultimately, the court found that there is a difference between these two circumstances, and that in order to benefit from the exception in the Order of Taking, an easement affirmatively recorded (presumably either referenced in a deed or a separate easement agreement) in the registry of deeds was necessary to qualify as an "easement of record." At least as appears from this decision, any implied or prescriptive easements, therefore, would not benefit from the protections provided by the exception, though we question the legal conclusion that implied easements are not "of record" since implied easements have their very genesis in a severance of a common estate by deed of record.
The more pressing result, of course, is that the dominant estate owners (like the plaintiff in Polchlopek) may become landlocked once their easement rights are extinguished. In those circumstances, the landowner would need to reach out to surrounding lot owners (including the new owner of the land taken by eminent domain) to determine whether there is an opportunity to negotiate for an access easement or some other interest that would allow ingress and egress for the now landlocked parcel. (Polchlopek is silent, however, as to whether the implied easement holder would be entitled to an assessment of damages for the taking. After this decision, it is hard to see how that would not be the case.)
NOTE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.