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 presumption that use if permissive in the absence of statements or actions that show that it is nonpermissive and found no prescriptive easement in the case of DiNino v. Newman, 2016 Mass. LCR LEXIS 179 (Mass. Land Ct. 2016). 

The court purported to apply the Massachusetts presumption that use is adverse (nonpermissive) and found that facts overcame that presumption. However, the only facts that were to the contrary were (1) a familial and loving relationship between the neighbors; (2) clear knowledge by the servient estate owner of the use by the neighbor. There never was a statement of permission or grant of permission that was other than peaceful common use of the driveway. In general, such common use is not sufficient to constitute a demonstration of "permission"; if it is, it means that use is permissive if an owner knows about the use by another and if that is the case, in almost all cases, the presumption will have shifted to be one of permission rather than nonpermission. Regardless of the court's reasoning, the case is consistent either with a rule that use by a family member should be deemed permissive or that use is presumed permissive in the absence of clear evidence to the contrary when that use is open and notorious (as it must be to acquire an easement by prescription at all).