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Easement Essentials: Types of Appurtenant Easements

Most people are familiar with the concept of easements. As defined by Black's Law Dictionary (7th ed.), an easement is

An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.

The right to use the land can include the right to pass and re-pass by foot and/or vehicle, siting a shared driveway or structure, and the right to install utilities.

Seems simple enough, but when people talk about easements, they may not realize that there are several types, usually differentiated by how they were created. The means by which an easement is or was created sometimes becomes important when trying to establish the parties' scope of rights and the physical boundaries of the easement.

In this post, we explore the various types of appurtenant easements, which are easements created on one parcel of land for the benefit of another parcel of land, with such easements rights being an incident of land ownership. These are different from easements in gross, which are easements that benefit a specific person, as opposed to a specific parcel of land.

First, some basic appurtenant easement terms:

Servient estate: the land that is burdened by an easement

Dominant estate: land that has the benefit of easement rights on another parcel

As for the types of appurtenant easements, there are several to consider:

Express Easement: The most common type of easement is the one created by express grant (or reservation) in a written document, such as in a deed or separate easement agreement, and sometimes even by court order. The language used in an express easement can vary widely in its complexity, but ideally contains some minimal information such as the location of the easement, the scope of use, and whether use is exclusive (or non-exclusive). Nevertheless, where an express easement is created, "every right necessary for its enjoyment is included by implication." Hodgkins v. Bianchini, 323 Mass 169, 173 (1948). By statute, the grant of an express easement includes the right to install utilities. See G.L. c. 187, §5.

Too often the language of a grant or reservation of easement is uncertain or susceptible of multiple interpretations. In such instances, if is often the role of the courts to examine extrinsic or parol evidence to determine the scope of the easement. "The scope of an easement, granted in general terms, [may be] 'determined by the language of the grant construed in the light of the attending circumstances.'" Pion v. Dwight, 11 Mass. App. Ct. 406, 411 (1981) (citations omitted). Attending circumstances include "relevant uses made of the servient tenement at the time of, or prior to, the instrument creating the easement." Id. at 412. "Subsequent use of the easement also may be relevant", but "at most is only one relevant factor and the presence or absence of evidence of such later use (where admissible) is not decisive." Id.

Easement by Implication: An easement by implication describes an implied grant derived from an established pattern of prior use of one parcel by the now separately-owned parcel, the continuation of which is implied as being what the parties intended when common ownership is severed. "Where during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication." Sorel v. Boisjolie, 330 Mass. 513, 516 (1953). Though easements by implication often relate to use of roads and access drives, they can just as well apply to water pipes, utility services or other kinds of uses that were in place prior to a division of land into two or more parcels. See Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 78, n.6 (2004).

(Implied) Easement by Estoppel (Subdivisions of Land): As succinctly captured in, Blue View Construction, Inc. v. Town of Franklin, 70 Mass. App. Ct. 345 (2007): "[A]n easement may be created by estoppel in two ways. First, when a grantor conveys land bounded by a street or way, he, and those claiming under him, are estopped [prevented] to deny the existence of the street or way, and his grantee acquires rights in the entire length of the street or way as then laid out or clearly prescribed. [citation omitted] Second, when a grantor conveys land situated on a street in accordance with a recorded plan that shows the street, the grantor, and those claiming under him, are estopped to deny the existence of the street for the distance as shown on the plan. [citation omitted]" Parties often rely on reference to plans of land that designate areas as rights of way or beach or park areas. However a reference to a plan alone does not create interests in real property in Massachusetts. See Carroll v. Hinchley, 316 Mass. 724, 729 (1944). Rather, where land is conveyed with reference to a plan, an easement . . is created only if clearly so intended by the parties to the deed. Jackson v. Knott, 418 Mass. 704, 712 (1994). See Reagan v. Brissey, 446 Mass.452, 458-461 (2006) (cataloging evidence, in addition to plan references, for determination that implied easement granted in conveyance of subdivision properties).

(Implied) Easement by Necessity: This type of easement requires a severance of common ownership of the land that, without an easement, would result in a landlocked parcel. "[A]n easement by necessity may be implied [if the court] can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create [an easement]." Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 291 (2005). The party seeking to prove the existence of such an easement must show that "(1) both dominant and servient estates once were owned by the same person or persons, i.e., that there existed a unity of title; (2) a severance of that unity by conveyance; and (3) necessity arising from that severance, all considered 'with reference to all the facts within the knowledge of the parties respecting the subject of the grant, to the end that their assumed design may be carried into effect.'" Id. (citations omitted).

Prescriptive Easement: Similar to fee simple rights that can be acquired by adverse possession, prescriptive easements can also be established (through adjudication of such rights) by proving twenty years of adverse, non-permissive, actual, open and notorious use of the servient estate. Unlike adverse possession claims, the individual claiming a prescriptive easement does not need to show that his use was exclusive.

No matter how an easement is created, there are often situations that arise where the scope or exact location of the easement requires a declaration from the court. Interpretation of the relevant document(s) (if any) and parties' actions, as well as the parties' burdens of proof at trial, will depend on the nature of how the easement was created.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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