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.
In my last post on the Derelict Fee Statute (Mass. Gen. Laws. Chapter 183, Section 58), I discussed exceptions and reservations under Subsection (b) of that statute, which exempt conveyances from the law's operation. But, what are exceptions and what are reservations in deeds?