Individuals seeking to improve a private road will generally need the consent of the owner, even if they have some property rights to use the road. In a December 4, 2018 Massachusetts real estate case, the plaintiffs initiated legal action against the defendant in Land Court after he refused to allow them to pave the sole road providing access to the parties’ homes. The defendant did not dispute that the plaintiffs held some type of an easement to use the road; however, he argued that they did not have the right to pave the road over his objection.
The parties owned seasonal homes on a secluded peninsula, which were accessible via one gravel-surfaced, private roadway. The defendant was the fee owner of the gravel road, which was located on his property. The roadway led to the plaintiffs’ house and continued past the defendant’s own house, serving a total of ten homes on the peninsula. The plaintiffs wished to pave the road for easier travel and less damage to their vehicles, and because they believed it was a reasonable improvement. The defendant believed that paving the road was unnecessary, and argued that doing so would worsen the road drainage problems, lead to non-residents’ use of the private road, allow cars to drive faster through the area, and overall change the feel of the small neighborhood.
Following a trial, the Land Court found that the plaintiffs had a prescriptive easement. Their prescriptive easement was created by continued use of the road for the required statutory period. Accordingly, the extent of their easement was limited to the use through which it was created, i.e., travel to and from their house.