Massachusetts courts hostile to easement by necessity doctrine

In Kitras v. Town of Aquinas, 49 N.E.3d 198 (Mass. 2016), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) refused to recognize easements by necessity for landlocked parcels. Massachusetts accepts the usual presumption that one who creates a landlocked parcel intends to give the owner of the landlocked parcel an easement over remaining land of the grantor to reach a public road. In most states the doctrine is based both on the implied intent of the grantor and public policy considerations that support access to land both to protect the landlocked owner's right to access his or her land and general welfare considerations of making the land alienable and usable. However, the emerging majority rule seems to be that the touchstone is the intent of the parties and if the parties actually intend to create a landlocked parcel, they will be allowed to do so, and their arrangement will not be overturned by a mandatory rule of public policy. In Kitras, the SJC firmly adopts this position. The court clearly stated: "There is no public policy that creates an easement by necessity to make land accessible." id. at 205. "It is a purchaser’s “own folly” that he purchased land that had no access to some or all of the land “and he should not burden another with a way over his land, for his convenience,” the court wrote, citing cases from 1918 and 1817.

This case involved common land owned by the Wampanoag Tribe of Gay Head (Aquinas) that was partitioned in 1878 into 500 lots and distributed among tribal citizens. The court applied the usual presumption in favor of easements by necessity but found that presumption overcome by evidence of an intent not to create such easements. Id. at 205. The court gave several reasons why the parties may not have intended to create easements by necessity. 

First, "rights of access were necessary because it was provided by tribal custom." Id. at 207. The argument is that owners would have allowed access informally so formal, permanent easements were unnecessary. This argument is very confusing since it would suggest an intent that access be available and not cut off. After all, if there is no easement, and the owner of the dominant estate refuses to participate in this custom and allow access, then land becomes landlocked. The court drew an inference from this customary fact that would seem to be the exact opposite of what the original tribal grantor would have intended.

Second, there were some specific easements granted in this partition and easements of access to public roads had been granted in a separate partition on Chappaquiddick Island , demonstrating that if easements by necessity were intended to be created that the grantor would have done so explicitly. Again, this argument appears to be contradicted by the first which rests on the understanding that access would have been allowed at the time the partition occurred.

Third, the land was viewed as desolate and infertile and was not thought to be useful so no access roads would have been necessary. It is hard to understand why this would mean that owners would have no access to their lands at all. The absence of an easement for a landlocked parcel literally means that one cannot get to one's land without depending on the kindness of strangers--neighbors who are free to exclude you from their lands. This argument suggests that if land is rough and hard to develop that the law should make it even more useless.

The result is that the owners of the landlocked parcels must negotiate with their neighbors if they want to purchase easements. This also means that they may not be able to obtain easements at all if the neighbors refuse to grant such easements.