Easements

Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than... Read more about Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this "possession" will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use -- rather than full occupation or "possession" -- is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the...

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States may not take tribal land by eminent domain

Lands owned by Indian nations and held in trust status cannot be taken by the states by eminent domain, although federal statutory authority allows states to take "allotments" held by the United States in trust for individual tribal citizens for public purposes including utility easements. 25 U.S.C. §357. The Tenth Circuit has held that if the tribe (in this case the Navajo Nation) owns a fractional interest in an allotment, then the state (or its service companies) cannot use eminent domain power to take a utility easement from those allotment owners.... Read more about States may not take tribal land by eminent domain

Electricity easement held not to encompass use for fiber-optic cable

While most courts have held that utility easements for electricity or telephone purposes can be used for cable television and other such purposes, see. e.g., Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo. Ct. App. 1985), a small number have gone the other way on the ground that easements are limited rights to use the land of another and that the use cannot exceed the scope of the original grant, see, e.g., Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002). 

The Eighth Circuit recently took the minority...

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An easement cannot be used to reach land to which it is not appurtenant

The Massachusetts Supreme Judicial Court has held that an easement cannot be extended even for a short way to access land to which it is not appurtenant. When an easement is created to enable access to a particular parcel of land, it can be used only for that purpose and not to access other parcels of land even if continguous. Taylor v. Martha's Vineyard Land Bank Comm'n, 60 N.E>3d 319 (Mass....

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Town's extension of an easement to the general public overburdens and exceeds the scope of the easement

The Massachusetts Appeals Court has held that opening an easement to the general public may overburden it when the easement had not previously been used in that manner, giving the owner of the servient estate the chance to prove that the increased use interfered with his retained property rights in the underlying land and exceeded the scope of the rights included in the easement. Goff v. Town of Randolph, 56 N.E.3d 893 (...

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Legal consequences of the distinction between affirmative easements and restrictive covenants

Massachusetts statutes regulate the enforceability of "covenants" by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30. 

In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail,...

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