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Massachusetts Court Determines Non-Owner’s Right to Use Abandoned Telephone Easement

Typically, a person who claims a right to use a certain portion of property owned by the title holder will typically file an action to acquire legal recognition of that right.  The Massachusetts Land Court decided a case on May 1, 2017 involving the plaintiff’s claim of a prescriptive easement appurtenant to land owned by the defendants.  The portion claimed was over a cleared strip of land, visible on the ground, running from the public road through the defendants’ parcel to the plaintiff’s property.  The parties agreed that the plaintiff had acquired at least a partial fractional interest in the path that ran over the defendants’ land, but the nature and scope of that path was in dispute.power line

To establish a prescriptive easement in Massachusetts, a claimant must show the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another party’s land (4) for a period of not less than 20 years.  The easement claimed is limited to the uses actually made of the section of property that meet those elements.  The burden is on the claimant to provide clear proof of each element.

The path at issue in the case was a six-foot wide dirt pathway that traveled in a straight line, without regard to topography.  Roots, stumps, and rocks had been left in the path.  At trial, the plaintiff testified that he did not create the path, nor had he ever maintained or cleared it.  Instead, the path had originated as a telephone line easement, which had been cut through the woods by the phone company.  By 1929, however, the telephone company had abandoned the easement, and the poles and wires were removed.

The land court, having seen the area, did not credit the plaintiff’s claim that he would drive his VW Jetta over the entire path.  The plaintiff did walk along to the path to reach his property, but only a few times a year, since there were no structures on his own vacant and wooded property.  The plaintiff left no indication of his presence on the path that would put anyone on notice that he had traveled it, such as removing limbs or debris that had fallen on it.  The court also noted that the plaintiff never posted a sign on the path indicating that his property was down the way, nor was there any easement or reference to an access route on the deeds to his property.

After reviewing the evidence, the land court concluded that the plaintiff failed to prove the easement that he claimed.  The court found that the plaintiff had not changed the path in any way, nor had he maintained it or left any sign of his claim or passing.  Accordingly, the court held that walking along a path in a dense woods, unobserved, once or twice a year, is not sufficiently actual, open, notorious, or continuous to establish a prescriptive right of use.

A knowledgeable real estate lawyer can provide important information regarding your property.  At Pulgini & Norton, our experienced property law attorneys can guide Massachusetts residents through all matters involving residential real estate, including home purchases and sales, title actions, building permits, mortgages, and many other property transactions.  To schedule an appointment with an attorney, call Pulgini & Norton at (781) 843-2200 or submit a contact form online.

More Blog Posts:

Massachusetts Land Court Finds No Right of Way to Access Landlocked Parcel, Massachusetts Real Estate Lawyer Blog, published April 25, 2016

Massachusetts Appeals Court Sides with Property Owner in Case Against Town Over Easement Rights, Massachusetts Real Estate Lawyer Blog, published August 22, 2016

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