Easements by Necessity
by Roger T. Manwaring

An easement is the right to use another person’s land in a certain way. While an easement can be expressly granted by the landowner, or acquired by prescription through non-permissive use of the owner’s land for 20 years (if some additional facts are also established), an easement can also be implied by a court, based on the conduct of the parties and surrounding circumstances. One such implied easement is an easement by necessity.

Suppose that Larry Landowner owns a rectangular parcel of land which has 100 feet of frontage on a public street (Main Street). The property also extends back 1000 feet from Main Street, with its back boundary abutting land owned by on Peter Purchaser. Peter’s land, in turn, has frontage on a different public road, Elm Street. A stone wall runs on Peter’s land along the boundary between it and Larry’s lot, through an area that is sometimes wet and muddy. One day, Peter, who is a fishing enthusiast and covets the trout pond located in the back part of Larry’s land, offers to buy the pond and surrounding area from Larry for an outrageously large amount of money.   Having little use for the pond himself, and having many uses for spare cash, Larry sells Peter the back half of his parcel.

The neighbors coexist peacefully until, early one morning, Larry finds Peter driving a large piece of construction equipment from Peter’s trout pond parcel, across Larry’s land, and onto Main Street, destroying ornamental plantings, a number of mature trees and a Larry’s garden shed in the process. Understandably dismayed, Larry calls the police and claims Peter is trespassing. Peter responds by bringing an action in the Land Court seeking a declaration that he has an easement by necessity to cross Larry’s land because the trout pond parcel Larry sold Peter has no access to a public street. Will Peter prevail? Probably not.

An easement by necessity arises (or can be implied) “... when a common grantor carves out what would otherwise be a landlocked parcel.” Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 76-77 (2004). More specifically, an easement by necessity may be implied if it can fairly be concluded that the grantor and grantee, had they considered the matter, would have wanted to create one. A court will imply an easement by necessity only upon a showing that (1) both dominant estate (the land owned by the party claiming the easement) and servient estate (the land over which the easement would run) 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 at the time of the conveyance. Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 (Mass. App. Ct. 2005).

Thus, the party claiming the easement must show a reasonable necessity (lack of access to a public way).   Notably, even where an easement by necessity is established, it lasts only so long as the necessity lasts. In the hypothetical outlined above, Peter cannot prove the requisite necessity because he has alternate means of access to a public way via his own land. While he cannot access Main Street without crossing Larry land, Peter can get to Elm Street from the trout pond parcel simply removing a portion of the stone wall on his own land and crossing the parcel he owns fronting on Elm Street. Even if this means of access is less convenient, he is required to use it rather than claim an easement over Larry’s land. The presence of the wall is immaterial since Peter owns it and has the right to remove it. Moreover, while Peter may claim that traveling from the trout pond parcel through his other land to Elm Street would violate wetlands protection laws (remember the property near the wall was sometimes wet and muddy), he is required to at least investigate the possibility and seek the necessary permits before concluding that this means of access is unavailable.