Massachusetts contains thousands of private streets and ways; on and along those ways innumerable residents of this Commonwealth live. We know that the Derelict Fee Statute operates to resolve ownership questions regarding these private ways. However, the “statute pertains only to the question of ownership of the fee [in a private way]”; it does not govern use, maintenance, or other rights and/or obligations over a way, which, for the purposes of this blog post, fall within the province of the common law of easements. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 389 (2005).
There are multiple types of appurtenant easements that a landowner abutting a private way may have: express, implied (estoppel, necessity, prior use), prescriptive. However, each type, unless otherwise expressly indicated, carries with it “every right necessary for its enjoyment is included by implication,” Sullivan v. Donohoe, 287 Mass. 265, 267 (1934); and, thus, “[t]he right to make necessary repairs is an incident to the easement.” Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513, 514 (1937). These incidental or secondary rights are broad and include paving, clearing of brush and limbs, and grading and leveling. See, e.g., Stagman v. Kyhos, 19 Mass. App. Ct. 590, 593-594 (paving); Glenn v. Poole, 12 Mass. App. Ct. 292, 296 (1981) (clearing of brush and limbs); Guillet v. Livernois, 297 Mass. 337, 340 (1937) (changing grade and level). Thus, an easement holder’s unilateral right to make necessary repairs and improvements “is well established in cases where the way is already in use” and “exists even more clearly where without improvement the way is impassable and useless.” Guillet, supra. The more difficult legal question is an easement holder’s ability to compel others to contribute to such maintenance and repairs, or to recoup the costs of the same.
There are multiple common law options through which an easement holder may obtain contribution or reimbursement for repairs to a private way. Below, is a discussion of two such options – equitable contribution and unreasonable interference.
1. Equitable Contribution. Contribution is an ancient legal concept. “By the common law, where one” co-owner of property “is willing to repair, and the others will not, he who is willing to repair has a right to make all necessary and useful repairs, and may” bring an action “against the other tenants, to obtain contribution.” Coffin v. Heath, 6 Metcalf 76, 79-80 (1843). “[T]he doctrine of contribution . . . is founded on the principle that where parties stand” in equal right, “equality of” burden “becomes equity.” Id. at 80. In other words, with equal rights come equal obligations.
Thus, “if repairs be made and paid for by one of the tenants, for the common benefit of the other tenants, they, in equity, would be held to contribute ratably for such useful expenses.” Id. “And not only would they be personally liable to contribution, but their estates also would be subjected to a lien, whether the tenants agreed to repair or not, if by the repairs a common benefit has been conferred on the owners, so that” from equity and good conscience “they ought to pay for such a benefit.” While the origin of the doctrine is quite old, its application has continued through to present. See e.g., Sheehan v. Sheehan, 361 Mass. 196, 197-198 (1972); Gough v. Gough, 329 Mass. 634, 636 (1953); Fiske v. Quint, 274 Mass. 169, 173-174 (1931).
In Cannata v. Berkshire Natural Resources Council, Inc., the Appeals Court specifically used the legal term “contribution”, and applied the foregoing principles to holders of “separate or common easements over the same land”. 73 Mass. App. Ct. 789. 797 (2009). It is true that “[t]he duty of maintaining an easement in such condition and repair as may be necessary to its exercise normally rests upon the holder of the easement.” Shapiro v. Burton, 23 Mass. App. Ct. 327, 333 (1987), citing New York Cent. R. R. v. Ayer, 242 Mass. 69, 75 (1922). However, this principle is practically inapt where there are multiple owners of a private way, and multiple common easement holders over the same. In such circumstances, courts will seek to determine “how the costs should be equitably apportioned among the common easement owners.” Shapiro, supra at 335.
“To sustain . . . an action” for contribution, “there must be [1] a request to join in the reparation, and [2] a refusal; and [3] the expenditures must have been previously made.” Coffin, 6 Metcalf at 80. Under these authorities, an easement holder could theoretically procure an estimate for repairs, make a request to the other abutters (and easement holders) that they join in the cost of the repairs, bear those costs themselves after a refusal to join, and, then, sue the other abutters for equitable contribution once the expenditures have been made. Because these actions originate in equity jurisdiction, however, a trial court would likely have the power to calibrate the claims of contribution against each abutter (or other easement holder), based upon various equitable principles. It is thus, uncertain whether, in all circumstances, costs will be apportioned “ratably” by the courts.
2. Unreasonable Interference. When multiple parties have access rights over the same private way, each owes obligations to the other easement holders: “The obligation between those who hold separate or common easements over the same land is that they act reasonably in the exercise of their privileges so as not to interfere unreasonably with the rights of other easement holders.” Cannata, 73 Mass. App. Ct. at 797, citing the Restatement (Third) of Property (Servitudes) § 4.12 comment b, at 626-627 (2000) (“holders of separate easements or profits in the same land must act reasonably to avoid unreasonably interfering with the enjoyment of other servitude holders, as well as with the servient estate”). See Walker v. E. William & Merrill C. Nutting, 302 Mass. 535, 543 (1939) (in exercising easement rights, holder of easement must show “due regard to the rights of others who may have an interest in the way”); Tindley v. Department of Environmental Quality Engr., 10 Mass. App. Ct. 623, 628 (1980) (same). “‘Their uses of the land are governed by equitable principles, namely, what is reasonable in the exercise of their respective privileges.'” Cannata, supra, quoting Shapiro, 23 Mass. App. Ct. at 334 (1987). “This calls for a ‘balancing of their interests as holders of an easement in common,'” Cannata, supra, quoting Shapiro, supra.
From these general propositions of law, governing rights of way, shared by multiple easement holders, flows the following principle: “To the extent that a second easement holder’s use unreasonably interferes with the use by the first easement holder, the second easement holder may be called upon to bear the additional costs.” Cannata, supra at 798 n. 13. As such, and for example, if an easement holder’s heavy construction vehicles destroyed the surface of a way, substantially interfering with another holder’s passage over the same, the easement holder responsible for such destruction should be required to bear the costs for repairs. Any number of similar instances can be imagined, where one easement holder’s actions so impair the use of a way that repairs become necessary for its continued use. This doctrine acts to burden the bad actor to a greater extent than other easement holders when allocating repair costs.
These foregoing common law remedies can be powerful tools to be wielded by a co-easement holder for the repair and maintenance of a private way. However, each are fraught with uncertainty and cost, and are time consuming enterprises, as both contemplate resort to litigation and trial for relief. Careful analysis with competent counsel will assist in providing guidance on how to implement these procedures.
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Written by Robert K. Hopkins, Esq. on behalf of Jeffrey T. Angley, P.C
Copyright (c) 2011-2017 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.
