Easements

Trespass to use mineral rights one property to extract minerals from a neighboring parcel.

The West Virginia Supreme Court held that a mineral owner or lessee that has the right to use the surface of one parcel to extract minerals or oil or gas from that parcel does not have the right to use that access to take minerals from neighboring parcels whose owners conferred no such rights. EQT Production Co. v. Crowder,2019 W. Va....

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External stairway encroachment on neighboring land by one foot is allowed to remain with damages only for the trespass victim

A Massachusetts court has found that a one foot encroachment on neighboring property by a new external stairway on a building is de minimus because the alley is hardly used, and the encroachment is both small and necessary to make the stairway consistent with the building code. Krieger v. Lanark LJS LLC, 2019 Mass. App. Unpub. LEXIS 345, 2019 WL 1976015...

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No right to pave prescriptive easement in rural area

In a case that rests on neighborhood norms and prescriptive easement doctrine, the Massachusetts Land Court has held that while an easement owner can maintain an easement, the easement owner here could not pave the road even though the unpaved road had holes that made it difficult to drive and had damaged the easement owner's car. Unpaved roads were common to the area and desired by the owner of the servient estate...

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Access easement found even though not noted on certificate of title to registered land

Massachusetts courts have several times ruled that access easements may be recognized even though language creating an express easement may be missing or ambiguous in the deeds to the servient estate. Hickey v. Pathways Ass'n, 37 N.E.3d 1003 (Mass. 2015) (access easement recognized over registered land even though it is not in the...

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Prescriptive easement to discharge water onto neighboring land

The Massachusetts Land Court has held that an owner can acquire the right to collect and discharge surface water onto neighboring land by prescription if this continues without permission by the servient estate owner and the other requirements for prescriptive easements are met. JPM Dev., LLC v. Nemetz, 2018 WL 4892726 (Mass. Land Ct. 2018). However, in a companion case, it emphasized that the amount of discharge is set by the historic use throughout the prescription period and any increase in that use is a trepass. Putney v. O'Brien, 2018 WL 6183338 (Mass. Land Ct. 2018).

No easement relocation without easement owner's consent when it would diminish the easement's utility

Applying the rule in M.P.M. Builders, LLLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004) and the Restatement (Third) of Property (Servitudes) §4.8(3) (2000), a court has held that a servient estate owner may not relocatee an easement without the consent of the easement owner when it would diminish the utility of the easement.Randon v. Kiley-Ladd, 2018 Mass. LCR LEXIS 152, 2018 WL 3567179 (Mass. Land Ct. 2018). The court... Read more about No easement relocation without easement owner's consent when it would diminish the easement's utility

Town acquires prescriptive easement allowing public to use a road and abutting parcel

When a road and abutting triangle of land was used the public and maintained by the town, the town acquired a prescriptive easement for continued use of the road by the public. Athanasiou v. Board of Selectmen of Westhampton,82 N.E. 3d 436 (Mass. App. Ct. 2017). The town's highway superintendent maintained the area, plowed, sanded...

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Nonuse insufficient to show an easement was abandoned and it is not extinguished by prescription when a locked gate did not make it impossible for the easement owner to use the right of way

A locked gate did not extinguish the right to use an express easement when the fence was intended to keep out the public and did not prevent the easement owner from accessing the right of way. Twenty Bartlett, LLC v. Sgarano, 2018 Mass. Super. LEXIS 104 (Mass. Super. Ct. 2018). Only if an action renders use of an easement "practically impossible" can it start the statute of limitations running for a prescriptive easement that will extinguish the...

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