In some situations, a well-traveled path through another’s personal property may give rise to an easement over time. In a case decided on March 7, 2017, the Appeals Court of Massachusetts reviewed whether the plaintiffs were entitled to use a path located on the defendants’ property in order to access a nearby beach. The case was on appeal following the Land Court’s decision finding that past use of the path by the plaintiffs and their predecessors had established a prescriptive easement over that portion of the defendants’ land.
The dispute originated during the previous ownership of the parties’ lots, which are located in two bordering subdivisions. When the defendants’ subdivision was initially developed, a road was installed for construction use to reach the public road. Thereafter, the same developer was hired to develop the plaintiff’s subdivision. The developer breached a wall that ran between the construction road, so equipment and materials used for the defendants’ subdivision could easily be brought into the plaintiffs’ subdivision.
Early purchasers of lots in the plaintiffs’ subdivision testified that residents would regularly walk and bike down the construction road to access the beach, although they were not granted explicit permission by the developer to use the road. In 1995, after the defendants acquired their lot, they installed a large boulder approximately four feet wide and four feet high at the northern entrance of the construction road, with an inscription that stated the road was a private way. Despite the sign, the defendants regularly observed people using the road to access the beach.
In Massachusetts, an easement by prescription is acquired by the continuous and uninterrupted, open and notorious, and adverse use of another’s land for a period of twenty years or more. An unexplained use for more than twenty years which is open, continuous, and notorious is presumed to be adverse and conducted under a claim of right. Once the presumption arises, the landowners—in this case, the defendants—have the burden of rebutting it by showing that the use was permissive.
On appeal, the defendants contended that the lower court erred in finding that the plaintiffs’ use was adverse, based on testimony from two witnesses who owned property along the construction path. The witnesses testified that the subdivision owner showed them the path and said they were free to use the road as a means of going to the beach. The defendants argued that the statements demonstrated permissive, not adverse, use of the path.
The appeals court disagreed, finding that the statements of the previous owner simply demonstrated that he had failed to object to the plaintiffs’ and their predecessors’ use of the path. The court went on to affirm that the boulder installed by the defendants was insufficient to establish control over the path, as it did not block foot traffic. As such, the order finding that the plaintiffs had acquired a prescriptive easement over the path was upheld.
If you have questions regarding an easement or any other use of your land, a property law attorney can provide answers specific to your situation. At Pulgini & Norton, our Massachusetts real estate lawyers can represent and guide individuals in all aspects of residential property matters. We have assisted people in home purchases and sales, mortgages and refinancing, permit and land use regulations, title issues, and many other transactions. To learn more , contact our office by phone at (781) 843-2200 or 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