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PRESCRIPTIVE EASEMENTS: COLLECTIVE USE DOES NOT PROVE AN INDIVIDUAL'S RIGHT OF USE

A few months ago we briefly covered prescriptive easements in a general land use post about different types of appurtenant easements.

To recap, to prevail on a claim of prescriptive easement-which is governed by M.G.L. c. 187, § 2-claimants must show that they (or their predecessors in interest) have used the property in question "in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007). Unlike a claim of adverse possession, a claim of prescriptive easement does not require exclusive use.

It is also important to remember that rightful owners can defeat claims of prescriptive easement by demonstrating that express or implied permission was given to the claimants. However, claimants are entitled to a presumption that the landowner knew that their use is being made under a claim of right, unless controlled or explained by the owner of the servient estate.

But what about those situations where multiple people have adversely used the land in question? Can the collective actions of others satisfy all elements of a prescriptive easement claim for those individuals who have occasionally used the land in a similar manner? A case like Houghton v. Johnson, 71 Mass. App. Ct. 825 (2008) (involving access to beach and tidal flats) is instructive in this regard.

In Houghton, the Appeals Court instructs us that "each plaintiff [prescriptive easement claimant] has the individual burden of establishing prescriptive right of use". Id. at 835 (emphasis added). This means that each individual plaintiff must show that his or her use was "sufficiently open and notorious as to entitle him to the benefit of the presumption that [the rightful landowner] knew that his or his predecessor's use of the area was being made under a claim of right." Id. at 840. "Each plaintiff [is] required to show more than a collective but individually sporadic and nonexclusive use of the disputed area in order to be entitled to the benefit of the presumption." Id. at 841.

So, using the facts of the Houghton case as an example, this means that plaintiffs are not entitled to tap into each others' occasional beachgoing activities-for example, like one plaintiff's beachside marshmallow roasting, another plaintiff's sunfishing and yet another's beach wedding-in order to support their individual claims of prescriptive easement. Even using collective terms like "beach users" is not likely to persuade the court that a prescriptive easement exists. These kinds of activities are "at best, infrequent and isolated incidents by a small number of certain subdivision residents rather than examples of occurrences from which it could be presumed that the [rightful owner] knew that the actors were conducting these activities under claims of right." Id.

In sum, groups of individuals who rally together in litigation to assert a claim of prescriptive easement should be prepared to show how each of their (and their predecessor's) use was sufficient to meet the elements of the prescriptive easement claim.

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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