It’s been a hot summer in the world of easement law. Our appellate courts have issued three decisions which, collectively, reinforce the following important lessons: (1) easements can be created by implication, (2) once created, most easements last forever unless extinguished, and (3) proving that an easement has been extinguished isn’t easy.
In mid-June, the Supreme Judicial Court (SJC) decided Cater v. Bednarek (pdf), in which it ruled that an easement that was created by deed in 1899 but never actually located on the ground or used by anyone had not been abandoned or otherwise extinguished, and could now be located and used to access the plaintiffs’ otherwise landlocked parcel. My colleague Gordie Orloff’s fine post analyzing Cater can be found here.
In late June, the Appeals Court affirmed a Land Court decision in a case called Richards v. Jackson. In this case, the Land Court ruled that an 1840 division of family land in Tisbury, on Martha’s Vineyard, created an “easement by necessity” (one of several types of implied easement) over adjoining land to reach a nearby public way. This easement, which lay dormant for 170 years, had the effect of “unlocking” a 29-acre wooded parcel that was long thought to be landlocked. The plaintiff bought this parcel in 2001 and later hired counsel to establish legal access. The Land Court’s trial decision is here (pdf), and the Appeal’s Court’s “unpublished” decision affirming the Land Court is here (pdf). Disclosure: I represented the successful plaintiff in Richards.
July brought yet another decision involving a forgotten easement. In Leahy v. Graveline (pdf), the plaintiffs, who own non-waterfront parcels in Hyannis, filed a case in Land Court claiming that they have implied and prescriptive easements to use nearby Hyannis Park beach. The defendant owners of lots on the beach disagreed (to put it mildly), asserting that their right to use the beach was exclusive. The Land Court sided with the plaintiffs, ruling that the circumstances surrounding a 1929 transaction – in which the then-owner of a large tract that included both sides’ properties sold lots adjoining the beach – created an implied easement in favor of the non-waterfront properties to continue using the beach. In finding that this was the owner’s intent, the Land Court relied on newspaper ads from the 1890s which referred to all the lots in this development as “shore lots” featuring a “[c]ool breeze all the time, good bathing, boating and fishing, nice beach, no undertow, shade trees on several of the lots.” The Appeals Court affirmed the Land Court, finding that these ads established a “common scheme for a vast subdivision with exceptional beach and bathing facilities,” and that “the existence of the beach was an important feature in [the owner’s] attempt to sell the nonwaterfront lots located in the Hyannis Park subdivision.” The Appeals Court also upheld the Land Court’s ruling that the implied easements created in 1929 had not been extinguished.
The Cater/Richards/Leahy trilogy is a potent reminder that easements can lurk undetected for decades – even centuries – in chains of title. With diligent title work and (if necessary) court action, these forgotten rights can be unearthed and used to unlock hidden value in all kinds of properties today.