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.
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.
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).
A few years ago, we posted a piece on easement essentials and types of appurtenant easements. Expanding on that theme, this post focuses on the concept of appurtenance and the inherent limitations it places on such use rights. As the prior post informed, appurtenant easements run with, and benefit, the land to which they attach; whereas in gross easements are personal use rights. Most easements are appurtenant rather than in gross because, 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).