In this part II of our series on easement basics, we will discuss how easements are created. Broadly-speaking, easements are established in three ways: by (1) express grant/reservation; (2) implication; and (3) prescription. As to each of these theories, “[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 over the Right of Way. Swensen v. Marino, 306 Mass. 582, 583 (1940) (scope); Hamouda v. Harris, 66 Mass. App. Ct. 22, 24 n. 1 (2006) (extent). Each theory of easement creation will be addressed in turn.
Express Grant or Reservation
The simplest, most straight forward way in which easements are created is by express grant or reservation. Since an easement is a property right, a nonpossessory estate in land, it can be established through the express language of an instrument of conveyance, such as a deed. See, e.g., Marden v. Mallard Decoy Club, Inc., 361 Mass. 105 (1972). Such easements are referred to in the case law as “express easements.” See, e.g., Chamberlain v. Badaoui, 95 Mass. App. Ct. 670, 673-674 (2019).
In terms of formal drafting requirements, “[a]n express easement can be created only by a writing signed by the party to be bound, and the writing ‘must identify with reasonable certainty the easement created and the dominant and servient tenements.'” Chamberlain, 95 Mass. App. Ct. at 674, quoting Parkinson v. Assessors of Medfield, 395 Mass. 643, 645 (1985), S.C., 398 Mass. 112 (1986). “Where an easement is created by deed, its meaning, ‘derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.'” Chamberlain, supra, quoting Patterson v. Paul, 448 Mass. 658, 665 (2007), ultimately quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998).
“Where the language of the . . . deed is clear and unambiguous, the inquiry need go no further,” Chamberlain, 95 Mass. App. Ct. at 674; and interpreting its meaning and effect reflects a question of law for the court to decide. See World Species List v. Reading, 75 Mass. App. Ct. 302, 305 (2009). The case law, however, makes exception for those instances in which extrinsic evidence may be employed to clear up doubt, ambiguity, or indefiniteness in the granting language creating the easement. See Oldfield v. Smith, 304 Mass. 590, 600 (1939). See also Burritt v. Lilly, 40 Mass. App. Ct. 29, 31 (1996). In such cases, an easement can be created by express grant notwithstanding such formal infirmities. See Oldfield, supra. Nevertheless, circumstances in which grantor intent is unclear within the four corners of a deed are fairly rare. It is for this reason that cases involving express easements tend to be a bit simpler to litigate and decide, and outcomes in such cases are a somewhat more predictable.
As previously mentioned, express easements can be created by grant or reservation / exception. When an easement is created by grant, the easement is affirmatively granted by the grantor to the grantee over other land still owned by the grantor. This poses another formal formation requirement: “Of critical importance . . . is the unity of title requirement, which derives from the simple observation that, whatever the intent, one may not grant what one does not own.” Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 291-292 (2005). “[E]asements can be created only ‘out of other land of the grantor, or reserved to the grantor out of the land granted; never out of the land of a stranger.'” Id. at 292, quoting Richards v. Attleborough Branch R.R. Co., 153 Mass. 120, 122 (1891). For affirmative grants of express easements, the typical, though not necessarily required, language used includes phrases such as “together with the right to . . .” or “with the benefit of . . .”
Reservations and exceptions refer to when a grantor uses express language in a deed to retain a use right over the land granted to the grantee. See, e.g., Claflin v. Boston & A. R. Co., 157 Mass. 489, 492-494 (1892). The distinction between reservations and exceptions is rather arcane (i.e., reservations relate to rights of way that are not preexisting and exceptions to ways already in existence), and generally does not make a legal difference: “As an exception may be created by words of reservation, little reliance can be placed upon the language used in determining whether the right is by way of exception or by way of reservation.” Id. at 493 (parenthetical and citation omitted). Just as an easement cannot be created from land of a stranger to the transaction, “[a]n easement cannot be imposed by deed in favor of one who is a stranger to it.” Hogkins v. Bianchini, 323 Mass. 169, 172 (1946). In other words, the grantor cannot reserve an easement for someone else. Typically, the words “reserving” or “exception” will be used in a deed to create an easement by reservation or exception.
Implication
Unlike express easements, the existence of which ordinarily poses a question of law, the question of whether the grant or reservation of an easement may be implied in a conveyance is a question of fact. “Each such ‘intended easement’ depends on the deed and the circumstances in which it was made.” Rahilly v. Addison, 350 Mass. 660, 662 (1966). In these cases, “[s]uch circumstances may exist at the time there is a grant of land that the instrument of grant describing the premises but making no reference at all to an easement nevertheless creates one.” Mt. Holyoke Rlty. Corp. v. Holyoke Rlty. Corp., 284 Mass. 100, 103-104 (1933). “The origin of an implied easement ‘whether by grant or by reservation . . . must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.'” Labounty v. Vickers, 352 Mass. 337, 344 (1967), quoting Dale v. Bedal, 305 Mass. 102, 103 (1940).
“There are cases where a single circumstance may be so compelling as to require the finding of an intent to create an easement,” Mt. Holyoke, 284 Mass. at 104, such as when the land granted would be land-locked without such an easement. See Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 76-79 (2004) (referring to such implied easements as easements by necessity). In others situations, such as where easements are implied by means of a common scheme, compare Reagan v. Brissey, 446 Mass. 452, 453-458 (2006); with Houghton v. Johnson, 71 Mass. App. Ct. 825, 832-835 (2008); many factors may be necessary to find such an intent. In others, “[w]here during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of the severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication.” Sorel v. Boisjolie, 330 Mass. 513, 516 (1953). See Bedford, supra (describing the distinction between implied easements by necessity and implied easements by prior use); Flax v. Smith, 20 Mass. App. Ct. 149, 152 (1985). The common theme is the objectively-assessed, presumed intention of the parties to the original conveyance. See Flax, 20 Mass. App. Ct. at 153 (holding “[w]hat is required . . . is not an actual subjective intent on the part of the grantor but a presumed objective intent of the grantor and grantee based upon the circumstances of the conveyance”).
As this canvassing of the law demonstrates, broadly-speaking, in Massachusetts, there are only four (4) theories of implied easement that have been recognized: (1) estoppel, see Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 (1989); (2) common scheme, see Reagan, 446 Mass. at 453-458; (3) prior use, see Sorel, 330 Mass. at 516; and (4) necessity. See Kitras v. Town of Aquinnah, 474 Mass. 132 (2016). There is no theory of implied easement based on “convenience” to the putative dominant estate. See Harvey Corp. v. Bloomfield, 320 Mass. 326, 329 (1946) (“convenience, without more, will not create an implied right of way”). Without the substantive elements of the foregoing doctrines being met, Massachusetts courts are not permitted to impute easements for purely practical reasons, even extremely strong practical reasons including that the putative dominant estate would be landlocked without the implied easement. See Kitras, supra at 139 (“[t]here is no public policy that creates an easement by necessity to make land accessible”).
As this discussion shows, determining whether a property benefits from an implied easement is an exceedingly fact-bound inquiry. There are few obvious answers in this area of the law, underscoring the need for counsel who is conversant with the nuances of these various legal doctrines.
Prescription
This final way in which easements can be created depends on adverse use alone, and not conveyances. “Acquiring an easement by prescription requires ‘clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years.'” Barnett v. Myerow, 95 Mass. App. Ct. 730, 738 (2019), quoting Smaland Beach Ass’n v. Genova, 94 Mass. App. Ct. 106, 114 (2018), ultimately quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007). “‘The nature and the extent of occupancy required to establish a right by adverse possession [or by prescription] vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.'” Barnett, supra, quoting LaChance v. First Nat’l Bank & Trust Co. of Greenfield, 301 Mass. 488, 490 (1938). “It is the general rule that prescriptive rights are measured by the extent of the actual adverse use of the servient property” (quotation and citation omitted). Tinker v. Bessel, 213 Mass. 74, 76 (1912).
With respect to the open and notorious requirement, “[e]asements by prescription may be established in either of two ways: (1) by use with knowledge on the part of the owner, whose land is used, that the person using his land claims a right to use it, or (2) by a use so open and notorious that knowledge of a claim of right will be presumed.” Houghton, 71 Mass. App. Ct. at 836. Knowledge of the use by the record owner, however, is not necessary. See Foot v. Bauman, 333 Mass. 214, 218 (1955). And, “[i]mportantly, the actual state of mind of the claimant is not relevant.” Barnett, 95 Mass. App. Ct. at 738, citing Totman v. Malloy, 431 Mass. 143, 146 (2000). A party need not have “the intent of acquiring a title interest that they did not already have.” Barnett, supra, citing Kendall v. Selvaggio, 413 Mass. 619, 623-624 (1992). “Similarly, that an owner allows use because of the mistaken belief that the user has title or an easement does not defeat a prescriptive easement claim.” Barnett, supra at 739, citing Kendall, supra at 622.
In addition, “‘continuous use’ does not require ‘constant use.'” Barnett, 95 Mass. App. Ct. at 739, quoting Bodfish v. Bodfish, 105 Mass. 317, 319 (1870). “Seasonal use may give rise to prescriptive rights.” Barnett, supra, citing Mahoney v. Heebner, 343 Mass. 770, 770 (1961); Lebel v. Nelson, 29 Mass. App. Ct. 300, 302 (1990). However, “[i]ntermittent and irregular use is insufficient to meet the . . . burden to prove an easement by prescription.” Barnett, supra at 740, citing Boothroyd, 68 Mass. App. Ct. at 45.
Many disputes over prescriptive easement claims boil down to controversies over permission. “[A]n owner’s express or implied permission for claimants’ use of his property defeats claims of” prescriptive rights. Houghton, 71 Mass. App. Ct. at 835. A party cannot obtain prescriptive rights over another’s land through uses made with permission from the owner.
In this regard, there can be disputes about what constitutes express permission. The grant of “permission” by a property owner constitutes “an oral license revocable at will”. Scioscia v. Iovieno, 318 Mass. 601, 603 (1945). The cases teach that it does not take magic words to create a license; simple statements such as “‘they would not trouble them’ about the [laundry drying] reals”, id. at 602; or “‘right of way ok'” create licenses as a matter of law. Davenport v. Broadhurst, 10 Mass. App. Ct. 182, 187 (1980).See also Mason v. Albert, 243 Mass. 433, 437 (1923) (master found “‘substance and intent of [defendant’s] statements concerning the matter was that she would like to be permitted to use it [the way] whenever occasion required for the use of said garden, and the plaintiff was willing that she should'”, which conversation created oral license). Contrast with Smith v. Wells, 250 Mass. 151 (1924), in which “‘I don’t know as I have any objection'”, “‘You had better see the Federal Land Bank'” and “‘I have no objection, but I don’t think the bank will stand for it'” were collectively held not to constitute the grant of license as a matter of law. Id. at 154, 155.
The law also draws a confusing distinction between implied permission and acquiescence: “‘Implied acquiescence is not necessarily the same as permission. In re Rawlins Merc. Co., 251 Fed. 164, 166, 169 (S.D. Ga.). See Robert v. Perron, 269 Mass. 537, 541, 169 N.E. 489. On the contrary, adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto.'” Houghton, 71 Mass. App. Ct. at 836, quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760, 763 (1964). Despite centuries of decisions, Massachusetts law contains no definition of “implied permission” or “acquiescence”, even though these concepts are frequently dispositive. As previously mentioned, it is settled law that implied permission defeats prescriptive claims. See, e.g., Spencer v. Rabidou, 340 Mass. 91, 93 (1959); Houghton, supra at 835-843. However, the “[c]ase law is not clear on what constitutes implied permission and no case explicitly defines the term.” Bagley v. Senn, 19 LCR 6, 11 (Jan. 18, 2011) (07 MISC 336553) (Piper, J.).
What appears to distinguish implied permission from acquiescence, gleaned from the scant case law on the question, is (1) use consistent with the record owner’s title, see Inhabitants of Nantucket v. Mitchell, 271 Mass. 62, 67 (1930) and Arnold v. Stevens, 24 Pick. 106, 110 (1839); (2) control exercised by the record owner, consistent with the grant of permission to use his or her property on a limited basis, see Houghton, 71 Mass. App. Ct. at 839; and/or (3) the prescriptive claimant’s acquiescence to that control. See Webster v. City of Lowell, 142 Mass. 324, 341 (1886). As can readily be seen, these distinctions are exceedingly subtle, and this subtlety leads to outcome unpredictability and volatility. This nuance, again, underlines and highlights the need for experienced and knowledge real estate litigation counsel.
Written by Nicholas P. Shapiro, Esq.
Copyright (c) 2018 – 2019 by Jeffrey T. Angley, P.C. All rights reserved.
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