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Easement Basics Part I: What They Are, Appurtenant Versus Personal Easements, and the Taxonomy of Claims

On Behalf of | Nov 5, 2019 | Easements |

A significant percentage of our case load, here, at Phillips & Angley, involves disputes over easements, also known as use rights, particularly over access and private way issues. Easement law comprises some of the oldest law in the United States, as we inherited many of the legal concepts and rules from England, in Colonial times. It has its own terms of art, causes of action and particular rules, developed over the centuries as the common law has evolved. This is the first in a series of posts that are intended to give a basic primer on these issues.

“An affirmative easement ‘creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.'” Patterson v. Paul, 448 Mass. 658, 663 (2007), quoting Restatement (Third) of Property (Servitudes) § 1.2(1) (2000). “The benefit of an easement … is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose. The holder of the easement … is entitled to make only the uses reasonably necessary for the specified purpose. The transferor of an easement … retains the right to make all uses of the land that do not unreasonably interfere with exercise of the rights granted by the servitude.” Martin v. Simmons Props., LLC, 467 Mass. 1, 9 (2014), quoting the Restatement, supra at § 1.2 comment (d). In particular, for instance, “[a] right of way”, a specific type of easement, “provides rights of ingress, egress, and travel over the land subject to the easement.” Busalacchi v. McCabe, 71 Mass. App. Ct. 493, 496 (2008).

Easements can be personal, also known as in gross, or appurtenant, meaning that the easement attaches to, and is subsumed within, the title of the land to which the easement provides a benefit. See Schwartzman v. Schoening, 41 Mass. App. Ct. 220, 223-224 (1996). There is a strong presumption of appurtenance as a matter of Massachusetts law; “[a]n easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate.” Willets v. Langhaar, 212 Mass. 573, 575 (1912).

Appurtenant easements run with the land and, by definition, are “‘incapable of existence separate and apart from the particular land to which it is annexed.'” Schwartzman, 41 Mass. App. Ct. at 223, quoting Black’s Law Dictionary 509 (6th ed. 1990) and citing Goodrich v. Burbank, 12 Allen 459, 462 (1866). An appurtenant easement “‘cannot be severed and sold separate from the estate [to which it is annexed].'” Schwartzman, supra at 224, quoting Phillips v. Rhodes, 7 Met. 322, 324 (1843). However, such easements run with the land in perpetuity, unless “extinguished . . . by grant, release, abandonment, estoppel or prescription” (concepts that will be addressed in a subsequent post). Delconte v. Salloum, 336 Mass. 184, (1957). Personal or in gross easements, on the other hand, are not assignable or transferrable from owner to owner, as appurtenant easements change hands by operation of law, unless the parties explicitly contract for assignability or transferability. See Rogel v. Collinson, 54 Mass. App. Ct. 304, 315 (2002).

This typical bilateral relationship, between the property burdened by the easement, on the one hand, and the property benefitted by the easement, on the other, is the wellspring from which many of the terms of art in this area of law flow, and frames many of the rules governing the meaning, effect and use of easements. In legal speak, “[a] servient estate is an estate burdened by an easement . . . A dominant estate is an estate that benefits from an easement . . . The owner of the dominant estate is the easement holder.” M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 88 n. 2 (2004), citing Black’s Law Dictionary 567, 569 (7th ed. 1999). In court, “[o]ne claiming the benefit of an easement bears the burden of proving the existence of that easement on the servient estate.” Hickey v. Pathways Ass’n, Inc., 472 Mass. 735, 753-754 (2015). This burden extends to the extent and scope of any use rights. Swensen v. Marino, 306 Mass. 582, 583 (1940) (scope); Hamouda v. Harris, 66 Mass. App. Ct. 22, 24 n. 1 (2006) (extent).

A party’s relationship to an easement defines what types of claims he or she can bring. A Dominant estate owner asserts a claim for material interference, when a servient estate owner uses his or her land, subject to the easement, in a manner inconsistent with, or causes a material increase in the cost or inconvenience in the use of, the easement. See Western Mass. Elec. Co. v. Sambo’s of Mass, Inc., 8 Mass. App. Ct. 815, 818 (1979). A Dominant estate owner may also bring a claim for unreasonable interference against another dominant estate owner, when the latter uses an easement unreasonably so as to interfere with the former’s use rights over the same. See Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789, 797 (2009).

A servient estate owner, on the other hand, advances a claim for overburdening, when an easement holder uses a servient estate in a manner “that exceeds the scope of rights held under [the] easement.” Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 319 n. 12 (2005). Within overburdening claims, there are three types of subset claims: (1) overburdening, which refers to the “use of an easement for a purpose different from that intended in the creation of the easement”; (2) overloading, which refers to “use of an easement to serve land other than the dominant estate to which the easement is appurtenant”; and (3) nuisance, which refers to an “overly frequent or intensive”, though otherwise allowable, “use”. Id. A servient estate owner also is empowered, at common law, to bring claims, unilaterally, to relocate, see M.P.M. Builders, 442 Mass. at 90-94; or reduce or alter the dimensions of the easement burdening his or her property. See Martin, 467 Mass. at 9-17. A servient estate owner also bears the burden of proving that an easement, once granted, reserved, or established by prescription, has been extinguished. See Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417, 422 (1979).

The level of complexity, which applies even to the basic principles of easements, and the types of claims that can be brought involving use rights, underscores the need to secure counsel who understands this esoteric and complicated area of law. In subsequent posts in this series, we will discuss how easements are established, how they are extinguished, how they are moved or altered, etc. Stay tuned.

Written by Nicholas P. Shapiro, Esq.

Copyright (c) 2018 – 2019 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.


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