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.
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).