Servitudes

Marketable title act extinguishes easement by necessity

In a surprising decision, the Vermont Supreme Court held that an easement by necessity must be recorded or it will be lost by operation of the state’s marketable title act. Gray v. Treder, 2018 VT 137, 204 A.3d 1117 (Vt. 2018). The facts of the case were unusual, however, because the easement in this case was not clearly visible by physical evidence of its use. That will...

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Easement by necessity may include right to lay utility lines for necessary services

The Connecticut Supreme Court has held that an easement of access established by necessity, an expansion of that easement for utility lines will be allow so long as it is reasonably necessary for the beneficial enjoyment of the dominant estate and does not unreasonably impair the servient estate owner’s beneficial enjoyment of their property.

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Easement by necessity available if the difficulty or expense of using a legally available route renders the land unfit for its reasonably anticipated use

The Pennsylvania Supreme Court granted an owner an easement by necessity even though the land contained a small strip connecting the land to a public way. Bartkowski v. Ramondo, 219 A.3d 1083 (Pa. 2019) (applying the Private Roads Act, 36 Pa. Stat. §§2731-2891. It did so on the ground that access need not be strictly necessary to get to the land for an easement...

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Owner of power line easement may install fibre optic cables without exceeding the scope of the easement

In a case applying what appears to be the majority rule, the Seventh Circuit held that an easement for power lines included the right to install lines for other purposes -- in this case fibre optic cables. West v. Louisville Gas & Electric Co., 951 F.3d 827 (7th Cir. 2020). The Texas Supreme Court rejected this...

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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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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).