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Massachusetts Land Owners Establish Prescriptive Easement to Use Driveway on Neighbors’ Land

The Massachusetts Land Court decided an easement dispute between two neighbors regarding a dirt driveway in Dunning v. Larsen (Mass. Land Ct. Oct. 8, 2015). The plaintiffs brought suit against their neighbors, seeking to establish rights in a path that leads from a private way to their property. The dirt path at issue is entirely within the bounds of the defendants’ property and is not itself a private way.forest-path-1387064-639x852

The court first examined whether the plaintiffs had a record easement over the dirt path by looking to the history of the property and the deed description. The grantor of the plaintiffs’ property had no ownership in the defendants’ property at the time he conveyed the right of way for the benefit of the plaintiffs’ property. Therefore, he could not grant an easement over the dirt drive contained within the defendants’ property. The court thus found that the plaintiffs had no record easement to use the dirt drive and no right to maintain utilities under the drive pursuant to G.L. c. 187, § 5. As a result, only the defendants have the right to use the dirt drive, unless the plaintiffs have a prescriptive easement.

To establish a prescriptive easement, a party must prove open, notorious, adverse, and continuous or uninterrupted use of the servient estate for a period of not less than 20 years. In Dunning, the court held that the plaintiffs did hold a prescriptive easement in the dirt drive. The court noted that the drive has existed since 1950 and has been used by the plaintiffs openly, notoriously, adversely, and continuously to travel to and from their property by vehicle, by bicycle, and on foot. The court found that the plaintiffs’ use of the drive has been visible to the public as well as the defendants since 1977. In addition, the plaintiffs believed that they had a record easement to use the drive, and they did not ask for permission from the defendants to use it, indicating that their possession was adverse.

After ruling that the plaintiffs held a prescriptive easement, the court then considered whether the scope of the easement would allow the plaintiffs the right to install underground utilities under and upon the dirt drive. The court held that the plaintiffs have no authority under G.L. c. 187, § 5 to install and maintain utilities under the drive pursuant to the record deed. However, since the plaintiffs had installed and maintained utilities, including electricity, telephone, water, and cable, under the drive openly, notoriously, adversely, and continuously from 1979 through and past 1999, the court held that they established a prescriptive easement to maintain underground utilities under the drive.

If you are involved in a property dispute or other real estate matter, a skilled attorney can inform you of your options under the law. The Massachusetts attorneys at Pulgini & Norton provide diligent, thorough, and competent representation to their clients in a wide range of real estate issues, including closings, home and land sales, mortgages and refinancing, and more. To discuss your legal needs with an experienced lawyer, call (781) 843-2200, or contact us online.

More Blog Posts:

Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015

Massachusetts Court of Appeal Rules on Ownership and Easement Issue, Massachusetts Real Estate Lawyer Blog, published November 10, 2015

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