Last month the Supreme Judicial Court (SJC) decided Cater v. Bednarek (pdf), an important case about easements and how they can – and can’t – be extinguished. The plaintiffs, the Caters, bought a vacant parcel of land in Truro that had the benefit of a right of way created by deed in 1899. That deed didn’t specify the location of the easement, and no one ever created a way on the ground or otherwise used the easement for 99 years. In 1998, the Caters filed an action in Land Court seeking to establish that they had a right to build a road on the easement, over lots that had been subdivided.
The owners of the land burdened by the easement initially argued that the easement had long ago been extinguished by abandonment or estoppel. They apparently didn’t appeal the Land Court’s rejection of their abandonment claim because abandonment requires more than mere non-use of an easement, and there was no evidence of any conduct by the Caters’ predecessors showing abandonment. Instead, on appeal they relied on the doctrine of estoppel. However, the SJC rejected that argument.
To show extinguishment of an easement by estoppel there must be a communication by the easement holder – including through silence – to the landowner burdened by the easement of the holder’s intention to modify or terminate the easement, in circumstances where it is reasonable to foresee that the burdened party will substantially and detrimentally rely on that communication. The SJC noted that silence alone may communicate an intention to modify or terminate an easement, but only where (1) the easement holder knows that the burdened party intends to develop his property in a manner “fundamentally inconsistent” with the continued existence of the easement, and (2) it’s foreseeable that the burdened party will interpret that silence as assent and proceed with the development.
In this case the burdened land was developed, but not in a way that was inconsistent with the Caters’ deeded right of way. Moreover, because the Caters’ parcel is landlocked (except on one side where there is water), an easement over the burdened property is the shortest route to a public street. Therefore, it wouldn’t have been reasonable for the burdened owners to infer from the holder’s silence an intention to terminate that route.
The SJC sent the case back to the Land Court judge to consider whether he had been overly restrictive in limiting the width and grading of the road that the Caters can now create to exercise their easement rights.
The SJC’s reluctance to extinguish the easement in Cater contrasts with the 2009 decision in The 107 Manor Avenue LLC v. Fontanella (pdf), in which the Appeals Court was more willing to infer an intent to abandon from the easement holder’s silence and inaction. Justice Scott L. Kafker dissented, citing the importance of certainty and predictability as grounds for taking a harder line (as now exemplified by Cater). The lesson here is that, like zombies, old easements are tough to kill.