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Massachusetts Agencies

Appurtenant

Easements

The case of Dennis v. Wilson, 107 Mass. 591 (1871) stands for the proposition that an easement is deemed to be appurtenant to land owned by the person who enjoys it. An easement "is never presumed to be personal, when it can be fairly construed to be appurtenant to some other estate." Id., at 592. See, also, G.L.c. 183, §13. (A different rule would apply to an easement in gross where there is no land of the grantee that would benefit from the easement. See McDermott v. Dodd, 326 Mass. 54, 92 N.E.2d 875 (1950).) An appurtenant right, even if not referenced in the deed, will be deemed to be conveyed together with the property to which it is appurtenant. See G.L.c. 183, §15. That ststute provides as follows:

In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.

Even if an easement does not specify the dominant estate, it is a fair interpretation of the instrument to conclude that it extends to all land owned by the grantee, or in which the grantee has any interest, even though not contiguous to the easement granted. See Jones v. Stevens, 276 Mass. 318, 177 N.E. 91 (1931). It would be appurtenant to every part thereof. See Rice v. Vineyard Grove Co., 270 Mass. 81, 169 N.E. 664 (1930).

If a landowner grants an easement to another party, which other party does not at the time own land in the area that would benefit from the easement, does the easement "take" when the other party thereafter acquires the land intended to be benefited? It seems that, except in the case of an easement in gross (which for all practical purposes is a personal right), the existence of an easement requires, at its inception, a servient and a dominant estate, held by different owners.

See also the memo, Easement in Gross, in Easements.