Having discussed what easements are, and how easements are created, this Part III of our series on easement basics will address how easements cease to exist-are extinguished or terminated. Once granted, an appurtenant easement generally has perpetual existence, as it comprises a vested property right, subject only to the application of various theories of extinguishment, recognized by Massachusetts common law. Therefore, if your property is subject to an easement, even a paper way, i.e., a right of way that exists only on paper, on a plan, and has not been developed on the ground, in order to use and/or develop your property as if the easement does not exist, you would need to satisfy the elements of one of the following theories: (1) release, (2) merger, (3) frustration of purpose / impossibility, (4) abandonment (5) adverse use, and (6) estoppel.
While an easement holder has the burden of proving the existence and scope of his or her easement, it is the servient estate owner who bears the burden of proving that the easement has been extinguished. See Hamouda v. Harris, 66 Mass. App. Ct. 22, 24 n. 1 (2006). Each theory, again, will be addressed in turn below, and you will see, as a general proposition, proving the extinguishment of an easement is a heavy lift.
When the case law refers to extinguishment by “release”, see, e.g., Emery v. Crowley, 371 Mass. 489, 495 (1976) (“easement can be extinguished only by grant, release, abandonment, estoppel or prescription”) (emphasis added); it relates to terminating an easement by a written instrument releasing a party’s “right, title and interest in an easement”. B&N Lands, LLC v. Chicoine, 19 LCR 247, 248 n. 2(May 4, 2011) (06 MISC 333456) (Sands, J.). See Parker v. Moore, 118 Mass. 552, 553 (1875) (“effect of the defendant’s release was to extinguish the easement”). This theory of extinguishment tends to be more straight-forward, clear-cut, and uncomplicated than the fact-bound theories addressed below, because its application hinges on the text of the particular release instrument, and the interpretation of an unambiguous written instrument poses a pure question of law, and not of fact. Either an instrument can be fairly read as releasing an easement, or it cannot be.
That said, there are limitations on this theory of extinguishment. An easement cannot be “released” without a writing. See, e.g., Dyer v. Sanford, 50 Mass. 395, 402 (1845). “[A]n easement is an interest in land, to be acquired and released only by deed, as between the parties respectively . . .” Id. One might think it obvious, but only an easement holder has the capacity to release an easement; the party whose party is burdened by the easement cannot release the easement. See Wilcon v. Hodjat, 15 LCR 570, 573 (Nov. 6, 2007) (Misc. Case No. 311546) (Scheier, C.J.) (condominium board and/or unit owners do not have authority to “rescind” easement).
Once an easement has been expressly released, “a conveyance of the same land by the same or a similar description would not imply that the parties intended or attempted a conveyance of the easement unless such intention appears in the deed.” Parker, 118 Mass. at 554. However, the release of an easement does not preclude attaining rights, even the use rights otherwise expressly released, thereafter by prescriptive use. See Merry v. White, 13 LCR 339, 342-343 (June 27, 2005) (Misc. Case No. 287948) (Trombly, J.). In other words, the rights released can, then, thereafter be reestablished.
Merger, in addition to release, comprises another method by which an easement may be extinguished by operation of law via the instruments of conveyance, recorded at the registries of deeds, rather than through facts and circumstances extrinsic to parties’ chains of record title. Therefore, the doctrine of merger is another theory that can be applied on paper, without resort to marshalling the relevant and applicable facts.
“Massachusetts courts have recognized the doctrine of merger at least since the mid-nineteenth century.” Busalacchi v. McCabe, 71 Mass. App. Ct. 493, 497 (2008) and cases cited. “The doctrine requires that a servitude terminates ‘when all the benefits and burdens come into a single ownership.'” Id., quoting the Restatement (Third) of Property (Servitudes) § 7.5 (2000). When the burdens and benefits of the easement come into single ownership, the easement merges into the fee title.
The rationale for the rule is simple: “When the dominant and servient estates come into common ownership there is no practical need for the servitude’s continued existence, as the owner already has ‘the full and unlimited right and power to make any and every possible use of the land.'” Busalacchi, supra at 498, quoting Ritger v. Parker, supra. In other words, merger embodies the very practical idea that one does not need an easement over one’s own land; such a grant would be a nullity. See Hickey v. Pathways Assoc., Inc., 472 Mass. 735, 748 (2015) (grant of easement to fee holders “would have been of no use. . . conveyance of such an easement would have been of no effect; the holder of a fee cannot hold an easement for access over the fee”). Therefore, when servient and dominant estates come into the same title, the easement extinguished by operation of law via the ancient doctrine of merger.
The doctrine, however, is formalistically rigid; it depends upon the existence of two unities: “First, the unity of title between the affected parcels must be of ‘a permanent and enduring estate, an estate in fee in both,’ because ‘the merger of the easement . . . arises from that unlimited power of disposal.'” Busalacchi, 71 Mass. App. Ct. at 498, quoting Ritger v. Parker, 8 Cush. at 147-148. “The union of defeasible estates cannot extinguish servitudes by merger.” Busalacchi, supra, citing Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 108 (1933) (“unity of title does not exist when two separate mortgages on two parcels are held by one person”); Murphy v. Olsen, 63 Mass. App. Ct. 417, 420 n.12 (2005) (mortgages on land preclude extinguishment of servitudes by merger). “Second, this unity of title only occurs when two ownership interests are coextensive.” Busalacchi, supra at 498, citing Rice v. Vineyard Grove Co., 270 Mass. 81, 86 (1930); Cheever v. Graves, 32 Mass. App. Ct. 601, 606 (1992). “By coextensive, we mean that the type of ownership interest being united must be the same; a fee simple absolute interest, for example, cannot be merged with an interest in joint ownership to extinguish an easement.” Busalacchi, supra and cases cited.
As with the discussion of use rights that have been expressly released addressed above, once merged, an easement may be revived thereafter. “Although a subsequent conveyance of one of the commonly held parcels will not automatically revive the extinguished easement, the doctrine in no way precludes the common owner from recreating precisely the same easement by express reservation.” Busalacchi, 71 Mass. App. Ct. at 498.
Frustration of Purpose / Impossibility
The first fact-bound theory of extinguishment addressed by this post, frustration of purpose also known as impossibility, can apply theoretically from the very moment that an easement is granted: “When a right in the nature of an easement is incapable of being exercised for the purpose for which it is created the right is considered to be extinguished.” Comeau v. Manzelli, 344 Mass. 375, 381 (1962), quoting Delconte v. Salloum, 336 Mass. 184, 190 (1957) (quotations omitted). See Makepeace Bros. v. Barnstable, 292 Mass. 518, 525 (1935). The case law teaches that the standard for this theory of extinguishment is difficult to meet. “An interest in the nature of an easement is not terminated when the purpose for which it is created is neither totally nor permanently impossible of enjoyment.” First Nat’l Bank v. Konner, 373 Mass. 463, 468 (1977). The standard is strict factual or legal impossibility. See id. at 467-469. In addition, for this theory to apply, “the circumstances that prevented the exercise of the right to the agreed purpose [must be] beyond the control of the owner of the dominant estate.” Id. at 469.
In particular, in First Nat’l Bank v. Konner, supra, the Supreme Judicial Court also declined to expand this theory of extinguishment to apply “when it would be commercially impractical or economically wasteful to attempt to revive the activity which the profit was created to serve.” Id. There, the court reasoned that “[i]t would be totally unwarranted to infer that the creator of the sanding right intended a commercially profitable venture to be a condition precedent to either the exercise or continuation of the right.” Id. In sum, this theory of extinguishment is exceedingly difficult to prove at trial.
Abandonment presents, perhaps, the most prevalent claim for the extinguishment of an easement that we encounter in our practice. However, like all fact-bound claims for extinguishment of an easement, abandonment poses a high bar for a claimant. An easement may be abandoned by (1) a long period of nonuse and (2) an act on the part of the easement holder evincing the intent to relinquish the servitude. See Sindler v. William M. Bailey Co., 348 Mass. 589, 593 (1965); Desotell v. Szczygiel, 338 Mass. 153, 159 (1958); Lasell College v. Leonard, 32 Mass. App. Ct. 383, 390-391 (1992). “Abandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement.” Cater v. Badnarek, 462 Mass. 523, 528 n. 15 (2012). “‘[N]onuse of itself, no matter how long continued, will not work an abandonment.'” Id., quoting Desotell, supra. This is why the doctrine is so hard to satisfy; there are many instances in which an easement has not been used for many, many decades, but the additional, affirmative proof of an intent to relinquish the easement is, more often than not, absent.
While such evidence is frequently lacking, the standard for that intent evidence is a case-by-case determination: “The issue is one of intent.” Fitzgerald v. Harlow, 27 LCR 554, 564 (Oct. 24, 2019) (16 MISC 000747) (Roberts, J.) “And that intent is to be ‘ascertained from the surrounding circumstances and the conduct of the parties.'” Id., quoting 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155, 158 (2009). “The necessary showing has also been described as proof of ‘acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence.'” Fitzgerald v. Harlow, supra at 563-564, quoting First Nat’l Bank v. Konner, 373 Mass. at 466-467. In this vein, “the owner of a dominant tenement may make such changes in the use and condition of his own estate as, in fact, to renounce the easement itself; and this may be relied on by the owner of the servient tenement as evidence of abandonment.” Dyer, 50 Mass. at 401.
In contrast, and as a subset of abandonment, “nonuse coupled with the ‘failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment.'” Siebecker v. Orefice, 22 LCR 178, 181 (April 29, 2014) (09 REG 43443) (Sands, J.) aff’d at 87 Mass. App. Ct. 1126, quoting 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. at 158. See Willets v. Langhaar, 212 Mass. 573, 575 (1912) (“[m]ere nonuser does not conclusively impair or defeat an easement created by deed. In order to have such an effect there must be an element of adverse use by the owner of the servient estate inconsistent with the continuance of the easement”); Jennison v. Walker, 11 Gray 423, 425 (1858) (“non-user of the easement by the owners of the dominant estate united with a use of the servient estate inconsistent with and adverse to the existence of the easement during this period of time” sufficient to prove abandonment).
Unlike claims for extinguishment by adverse use, addressed below, the non-use and acquiescence to acts by the servient estate owner inconsistent with the continued existence of the easement need not extend for 20 or more years. “It is not the duration of the cesser to use the easement, but the nature of the act done by the owner of the easement, or of the adverse act acquiesced in by him, and the intention which the one or the other indicates, that is material. And a cesser of use for a less period than twenty years, accompanied by acts clearly indicating the intent to abandon the right, is sufficient.” Pope v. Devereux, 5 Gray 409, 412 (1855) (citation omitted). Thus, this subset form of abandonment can be a potent substitute for an imperfect or incomplete claim for extinguishment by adverse use; one that we have successfully litigated for our clients in the past. See Moss v. Lingley, 26 LCR 164 (April 6, 2018) (13 MISC 480577) (Long, J.).
Extinguishment by adverse use is like adverse possession on steroids. It requires the typical showing with respect to the elements of a claim for adverse possession, but with the added requirement that the adverse use be inconsistent with the continued existence of the easement. “‘[A]n easement is extinguished by a use of the servient tenement by the possessor of it which would be privileged if, and only if, the easement did not exist, provided (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, 736-737 (1985), quoting the Restatement of Property § 506 (1944). See Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417, 422 (1979) (describing added burden between asserting easement by prescription and extinguishment or termination of an easement by prescriptive use, i.e., use must be “at complete variance with the [easement holder’s] rights”). As one can imagine, this standard is very hard to prove at trial.
These claims can be useful, however, in that, unlike frustration of purpose / impossibility addressed above, easements can be partially extinguished by adverse use. “‘Where, as here, such acts of the servient tenant render the use of only part of a right of way impossible, the easement is extinguished only as to that part.'” Lemieux, 7 Mass. App. Ct. at 423-424, quoting Pappas v. Maxwell, 337 Mass. 552, 557 (1958). There are many scenarios in which structures, constructed or installed by servient estate owners, partially intrude into easement areas; and, if such improvements have been in place for 20 or more years, then this type of development of servient estates would effect partial extinguishments of the underlying easements.
Under Massachusetts law, an estoppel may work the extinguishment of an easement based on the following standard:
‘A servitude is modified or terminated when the person holding the benefit of the servitude communicates to the party burdened by the servitude, by conduct, words, or silence, an intention to modify or terminate the servitude, under circumstances in which it is reasonable to foresee that the burdened party will substantially change position on the basis of that communication, and the burdened party does substantially and detrimentally change position in reasonable reliance on that communication’ . . .
To prevail on a claim of estoppel based on silence, [a party] must prove that the silence of the owner of the dominant estate communicated an intention to modify or terminate the easement to the owner of the servient estate, which the latter reasonably relied on to its substantial detriment. Generally, silence reasonably may communicate such an intention only where the owner of the dominant estate knows that the owner of the servient estate intends to develop the servient property in a manner that is fundamentally inconsistent with the continued existence of the easement, and it is reasonably foreseeable that the servient estate owner will interpret the dominant estate owner’s silence as assent and proceed with the inconsistent development to his detriment.
Cater, 462 Mass. at 531, 532, quoting the Restatement (Third) of Property (Servitudes) § 7.6, at comment a (2000) (emphasis in decision) (citations omitted). “‘Estoppel is based on the policies of preventing the injustice and unjust enrichment that would result if servitude beneficiaries were able to mislead a burdened party into believing that the servitude will be modified or terminated and then to obtain an injunction or judgment for damages when the burdened party violates the servitude.'” Cater, supra at 531, quoting the Restatement, supra.
To our knowledge, this theory of extinguishment has never been successfully invoked. And, as can readily be discerned from this discussion, the facts that would support one fact-bound theory of extinguishment would be very likely to support others theories. Thus, there is a direct relationship between success and failure under the various theories outlined in this post. They are likely to rise or fall together. That said, the theories are distinct, and we have seen a case where only one of the foregoing theories was adopted by the trial court based on those subtle distinctions. See Moss v. Lingley, supra. All of this complexity, nonetheless, bolds and underlines the need for sophisticated and knowledgeable counsel.
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.