Abandonment of an easement shown when fence closes access to it

Owners built a retaining wall and deck that completely excluded the neighbor from use of the strip of land, thereby extinguishing the easement by prescription since these acts "render[ed] use of [the] easement practically impossible" for the statutory period.  Giannelli Mgmt. & Dev. Corp. v. MPA Granada Highlands, LLC, 21 LCR 211, 216, 2019 Mass. LCR LEXIS 82, 2019 WL 1995535 (Mass. Land Ct. 2019).

The court also found the easement was also extinguished by abandonment because the conduct of the easement owner showed an "intent to abandon the easement by acts inconsistent with the continued existence of the easement." 21 LCR at 216.

"Nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate." However, an "extended period of nonuse is a factor to consider in determining whether an easement has been abandoned," especially when combined with "acquiescence to the use of the [easement] made by others," 21 LCR at 217. Here the easement owner built a fence that blocked the easement and made it impossible to use.